Civil Personality and Capacity

Aleezah Gertrude Regado
PERSONS AND FAMILY RELATIONS NOTES

BOOK 1 other codes, the Rules of Court, and in
PERSONS special laws. Capacity to act is not limited on
TITLE I --- CIVIL PERSONALITY account of religious belief or political opinion.
CHAPTER 1: A married woman, twenty-one years of age or

GENERAL PROVISIONS over, is qualified for all acts of civil life,
except in cases specified by law.
Art. 37. Juridical capacity, which is the
fitness to be the subject of legal relations, is
inherent in every natural person and is lost Restrictions on Capacity to Act:
only through death. Capacity to act, which is 1. Minority
the power to do acts with legal effect, is 2. Insanity or Imbecility
3. State of being deaf mute
acquired and may be lost
4. Prodigality
5. Civil Interdiction
ART 37 JURIDICAL CAPACITY AND
CAPACITY TO ACT Modifications/Limitations on Capacity to
Act
JURIDICAL CAPACITY TO ACT 1. Family relations
CAPACITY 2. Insanity
 Acquired upon  Not inherent in a 3. Imbecility
birth and is person ; 4. Trusteeship
terminated only  Attained or conferred 5. Insolveny
upon death Can likewise be lost 6. Penalty
not only by death but 7. Prodigality
by any valid cause 8. Age
provided by law 9. Alienage
 Passive  Active
 Inherent  Merely Acquired Art 38
 Can exist without  Exists with juridical  Restricts one’s capacity to act
capacity to act capacity Art 39
 Enumerates situations which merely
Art. 38. Minority, insanity or imbecility, the modify the capacity to act
state of being a deaf-mute, prodigality and
civil interdiction are mere restrictions on OBJECTIVE OF ARTICLES 38 AND 39
capacity to act, and do not exempt the  Make an overview of the situation that
incapacitated person from certain obligations, qualifies a person’s power to undertake
as when the latter arise from his acts or from acts which can produce legal effects
property relations, such as easements.  Intended to give people not adept with
technicalities of law, situations which
Art. 39. The following circumstances, among may effectively, juridically and legally
others, modify or limit capacity to act: age, affect such relationships.
insanity, imbecility, the state of being a deaf-  Consequences of these restrictions and
mute, penalty, prodigality, family relations, modifications in person’s capacity to act
alienage, absence, insolvency and are provided by:
trusteeship. The consequences of these 1. Civil Code
circumstances are governed in this Code, 2. Other Codes
[1]
3. Special Laws RULING
4. Rules of Court  Conceived child, although not yet unborn,
is given by law a provisional personality of
CHAPTER 2: its own for all purposes favorable to it, as
explicitly provided in Art 40 of Civ Code.
NATURAL PERSONS
 Even if child is only “en ventre de sa
mere” just as a conceive child, even if as
Art. 40. Birth determines personality; but the yet unborn may receive donations and
conceived child shall be considered born for its being ignored by parent in his
all purposes that are favorable to it, provided testament may result in preterition of a
it be born later with the conditions specified forced heir that annuls the institution of
in the following article. testamentary heir even if such child
should be born after death of testator.
Art. 41. For civil purposes, the fetus is
 Art 40 prescribing “conceived chid shall
considered born if it is alive at the time it is
be considered born for all purposes that
completely delivered from the mother's
are favorable to it” adds further “provided
womb. However, if the fetus had an intra-
it be born later with the conditions
uterine life of less than seven months, it is
specified I following article.
not deemed born if it dies within twenty-four
hours after its complete delivery from the  Provisio however is not a condition
maternal womb. precedent to right of conceived child; for
if it were, first part of Art 40 would be
** COMMENCEMENT OF CIVIL useless af.
PERSONALITY** BEGINNING OF PERSONALITY
“Civil personality of the child shall commence GR: Birth determines Personality
from the time of his conception for all EX:
purposes favorable to him, subject to the Civil personality of child shall commence
requirements of Art 41 of Civ. Code” (Art 5, P.D from time of its conception, for all purposes
No. 603/ Child and Youth Welfare Code) favorable to him subject to reqs of Art 41
QUIMIGUING v. ICAO Law considers conceived child as born for all

FACTS: purposes favorable to him (if born alive)
 Carmen Quimiguing sued Felix Icao, Therefore child has a presumptive personality
defendant although married succeeded in which has the following characteristics:
having carnal intercourse without her 1. Limited
consent and as a result she became 2. Provisional or Conditional
pregnant. EX:
 Carmen claimed support of P120.00 per  Concept of provisional personality
month, damages and attorney’s fees. CANNOT be invoked to obtain damages
 Icao moved to dismiss for lack of cause of for and in behalf of an aborted child.
action since the complaint did not allege that  Well, parents can in their own legal right
child had been born; and after hearing against doctor who caused abortion.
arguments, trial judge sustained defendant’s (Provided they must show that they have
motion and dismissed complaint. not consented or acquiesced to abortion)
[2]
WHEN CHILD IS CONSIDERED TO BE BORN?
 Born if alive at time it is completely CONFIDENTIALITY OF BIRTH RECORDS
delivered from mother’s womb.  Cannot be revealed except in cases
 EX: If fetus had an intra-uterine life of less provided by law.
than 7 months, it is not deemed born if it  They are required to be confidential and
dies w/in 24 hours after complete delivery therefore not known to the public
 Nevertheless they still maintain there
BIRTH CERTIFICATE nature as public documents because
 Best evidence of fact of birth following proper legal procedure, they can
 Public document once registered in Office be obtained by those interested therein.
of Local Civil Registrar (Child and Youth Welfare Code, Art 7)
 However: EXCEPT UPON REQUEST OF ANY OF THE
Only prima facie evidence of facts FOLLOWING
contained therein and can be rebutted by 1.) Person himself/person authorized by
competent evidence him
2.) His spouse, parent/s, direct
descendants or guardian or institution
(Sec 4 of Civil Registry Law Act No. 3753) in charge of him (if minor)
SUFFICIENT FOR REGISTRATION OF BIRTH IN 3.) Court or proper public official
CIVIL REGISTER whenever absolutely necessary in
Declaration of: administrative, judicial or other official
1.) Physician /Midwife in attendance at birth proceedings to determine identity of
2.) In default, declaration of either parent
child’s parents or other circumstances
WHEN
 Not later than 30 days AFTER birth
surrounding his birth
(duh, alangan namang before?!) 4.) In case of person’s death, the nearest
CERTIFIES THE FOLLOWING FACTS of kin
1.) Date & Hour of Birth
2.) Sex & Nationality of infant
3.) Names, Citizenship & Religion of parents Art. 42. Civil personality is extinguished by
Or in case father is not nown, of mother
alone
death.
4.) Civil Status of parents
5.) Place of birth The effect of death upon the rights and
6.) Such other data as may be required in obligations of the deceased is determined
regulations to be issued
by law, by contract and by will.
WHAT IF EXPOSED CHILD? #NATAGPUAN
 Person who found, report to local civil registrar
the DEATH
1. Place  Puts end to Civil Personality
2. Date
 “Death extinguished civil personality and
3. Hour of finding
4. Other attendant circumtances therefore, all further juridical capacity to
ILLIGITIMATE CHILD acquire or transmit rights and obligations of
 Birth cert, sign and sworn jointly by parents or any kind” (Butte v. Manuel Uy & Sons Inc)
only by mother (if no balls si poppa)
 If father refuses, it shall not be permissible to
state or reveal in documents the name of DEATH CERTIFICATE
father who refuses to acknowledge the child or  Office of Local Civil Registrar of
give therein any info by which such father Municipality or City must also have in its
could be identified (Baka kasi mamaya
custody the death certificates of persons
malandi ka, di naman talaga siya ang
fatherbells niyan) who died in its locality.
[3]
(Sec 6 of Civil Registry Law) shall prove the same; in the absence of proof,
 No human body shall be buried unless the it is presumed that they died at the same time
proper death certificate has been presented and there shall be no transmission of rights
and recorded in the office of local civil from one to the other.
registry
DEATH CERT SHALL CONTAIN
PROOF OF DEATH
1.) Date & Place of Death
2.) Full name  Art 43 specifically applies only to persons
3.) Age called upon to succeed each other.
4.) Occupation/Profession  Proof of death must be established by
5.) Residence positive evidence
6.) Status as regards marriage  However it can likewise be established by
7.) Nationality of Deceased circumstantial evidence derived from facts.
8.) Probable Cause of Death
 “In conclusion, the presumption that
DURING EPIDEMIC
 Bodies may be buried provided the proper Angela Joaquin de Navarro died before her
death certs have been secured, which shall son is based purely on surmises,
be registered not later than 5 days AFTER speculations or conjectures without any
burial sure foundation in the evidence. Opposite
theory, that mother outlived her son is
CONTRACT, WILL AND THE LAW deduced from established facts which
 Rights & Obligations of dead person weighed by common experience, engender
can still be regulated by contract, will the inference as a very strong probability. “
or law. (Joaquin v. Navarro)
 Creditors given right to claim for
estate of deceased, any obligation PRESUMPTION OF SURVIVORSHIP
due them before estate can finally be  If there is doubt as to whom, between or
partitioned in favor of heirs. among two or more persons called upon
EXAMPLE: to succeed each other died first, the
Matias father of Kiki and Koko died. following rules apply
Matias owes P20,000.00 from Nuknuk. 1. Whoever alleges death of one prior
Therefore before Kiki and Koko enjoys to the other shall prove the same
with the P50,000.00 left by there Sugar
2. In absence of proof, it shall be
Poppa, Nuknuk could first claim the
presumed that they died at the same
P20,000.00 due to him.
time, therefor no transmission of
 Testator through express provision in a
will may disinherit any of his/her heirs
rights from one another
under any valid grounds provided by (Bes, ma-tetegi na nga lang, dami pa
law. hanash ng law sa who’s this and
 Any person who shows disrespect to who’s that…)
dead or wrongfully interferes with
funeral shall bee liable to the family of
the deceased for damages, material or
moral.
Art. 43. If there is a doubt, as between two or
more persons who are called to succeed each
other, as to which of them died first, whoever
alleges the death of one prior to the other,
[4]
3. Corporations, Partnerships and
Associations for Private Interest
CHAPTER 3 STATE
JURIDICAL PERSONS  Yup, Juridical person
 Is a sovereign person with people
Art. 44. The following are juridical persons: composing it viewed as an organized
(1) The State and its political subdivisions; corporate society under a government with
the legal competence to exact obedience
(2) Other corporations, institutions and of its commands.
entities for public interest or purpose, created  As a juridical person, state can enter into
by law; their personality begins as soon as treaties and contracts
they have been constituted according to law;  State cannot be sued w/o its consent.
 Suability depends on consent of state,
(3) Corporations, partnerships and  Liability on applicable law and established
associations for private interest or purpose to facts.
which the law grants a juridical personality,
separate and distinct from that of each POLITICAL SUBDIVISIONS
shareholder, partner or member. (35a)  Municipal corporations and in the
Philippines consists of provinces, cities and
Art. 45. Juridical persons mentioned in Nos. 1 municipalities.
and 2 of the preceding article are governed by  May exercise either poitical or
the laws creating or recognizing them. governmental functons or private,
Private corporations are regulated by laws of proprietary or corporate right.
general application on the subject.  Officers and agents in performance of such
functions act in behalf of the municipalities
Partnerships and associations for private in their corporate or individual capacity and
interest or purpose are governed by the not for state of sovereign power.
provisions of this Code concerning
partnerships. (36 and 37a) CORPORATION
 Governed by B.P Blg 68 otherwise known
Art. 46. Juridical persons may acquire and as Corporation Code of the Philippines/
possess property of all kinds, as well as incur  May 1, 1980
obligations and bring civil or criminal actions,  Is an artificial being created by law having
in conformity with the laws and regulations of rights of succession and the powers,
their organization. attributes and properties expressly
authorized by law or incident to its
JURIDICAL PERSON existence.
 Being of legal existence susceptible of
rights and obligations or of being the PARTNERSHIP
subject of juridical relations.  By contract of partnership, two or more
persons bind themselves to contribute
WHO ARE JURIDICAL PERSONS? money, property, or industry to a common
1. State and its Political Subdivisions fund with the intention of dividing the profits
2. Corporations for public interest ( Quasi- among themselves. Two or more persons
Public Corporations)
[5]
may also form partnership for exercise of (4) Those whose mothers are citizens of the
profession. Philippines and, upon reaching the age of
DISTICT PERSONALITY AND majority, elect Philippine citizenship;
EXCEPTIONS
 Corps, Partnerships & Associations for (5) Those who are naturalized in accordance
private interest and purpose may be with law.
granted by law a juridical personality
separate and distinct from that of each Art. 49. Naturalization and the loss and
shareholder, partner or member. reacquisition of citizenship of the Philippines
 Hence obligation of Tagay Corp is not an are governed by special laws.
obligation of its Tagay Board members.
(There is such thing as doctrine of Art. 50. For the exercise of civil rights and the
corporate veil) fulfillment of civil obligations, the domicile of
natural persons is the place of their habitual
Art. 47. Upon the dissolution of corporations, residence.
institutions and other entities for public
interest or purpose mentioned in No. 2 of Art. 51. When the law creating or recognizing
Article 44, their property and other assets them, or any other provision does not fix the
shall be disposed of in pursuance of law or domicile of juridical persons, the same shall
the charter creating them. If nothing has been be understood to be the place where their
specified on this point, the property and other legal representation is established or where
assets shall be applied to similar purposes they exercise their principal functions.
for the benefit of the region, province, city or
municipality which during the existence of DOMICILE RESIDENCE
the institution derived the principal benefits Fixed permanent Place of abode,
from the same. residence; which when whether permanent or
absent one has temporary
intention of returning
Title II. - CITIZENSHIP AND DOMICILE Residence coupled No length of residence
with intention to without intention of
Art. 48. The following are citizens of the remaining will remaining will
Philippines: constitute a domicile constitute domicile.
(1) Those who were citizens of the Philippines ONLY ONE MAY BE AS MANY AS
at the time of the adoption of the Constitution YOUR MONEY
COULD AFFORD.
of the Philippines; “Domicile is like true love, you may wander over across the
surface of the Earth, but heart desires the intent of
(2) Those born in the Philippines of foreign returning to what it considers to be home”
“Residence, is the mistress you may seek from time to
parents who, before the adoption of said time..But without the intent to stay, it shall forever just be
Constitution, had been elected to public office province for comfort”
in the Philippines; ***MINOR = DOMICILE OF PARENTS
CAN A DOMICILE BE LOST AND CHANGED?
(3) Those whose fathers are citizens of the ---YEAHHHHHH
Philippines; BY:
1. Actual removal/ actual change of
domicile
[6]
2. Bona fide intention of abandoning the 1. Not less than 21 years of age on day of
former place of residence establishing a hearing of petition
new one 2. Resided in PH for continuous period of
3. Acts which correspond with the purpose not less than 10 years
3. Good moral character and believes in
CITIZENSHIP principle underlying in PH consti and
 Status of being citizen or of owing must have conducted himself in a proper
allegiance to the state for the privilege and irreproachable manner during the
of being under its protection. entire period of his residence in PH in his
 Art 4, 1987 Consti governs rule on relation with the constituted government
citizenship as well as with community in which he is
Sec 1: The following are citizens of the living.
Philippines 4. Own a real estate in PH worth not less
1.) Citizens at time of adoption of consti than P5,000.00 or must have some
2.) Fathers and Mothers are citizens of Phil. known lucrative trade, profession or
3.) Born before Jan 17,1973, of Filipino lawful occupation.
mothers who elect Phil. Citizenship.  However under present Consti,
Those who elect Phil. Citizenship in no alien or foreigner may own land
accordance with paragraph 3 Sec 1 shall except through hereditary
be deemed natural born citizens succession
Sec 3: Philippine citizenship may be lost or 5. Speak and write English or Spanish and
reacquired in the manner provided by law any one of the Principal Philippine
Sec 4: Citizens of the Philippines who marry language
aliens shall retain their citizenship, unless 6. Must have enrolled his minor children of
their act or omission they are deemed under school age
the law to have renounced it.  Any public school or private
Sec 5: Dual allegiance of citizens is inimical school recognized by the Office
to the national interest and shall be dealt with of Private Education of
by law Philippines
 Where Phil. History, government
JUS SANGUINIS and civics taught or prescribed
 Citizenship by blood as partu of the school,
JUS SOLI curriculum, during the entire
 Citizenship on basis of place of birth period of the residence in PH
required of him prior to the
ACQUISITION OF CITIZENSHIP hearing of his naturalization as
 Governed by Commonwealth Act No 473 PH citizen.
as amended. Sec 3: Special Qualification
 For a foreigner to be the able to become a  Years of continuous residence required
Philippine Citizen, a proper petition shall be under second condition of last
filed in the proper court which after due proceeding section shall be understood
hearing shall issue the certificate of as reduced to 5 years for any petitioner
naturalization. having any of the following qualifications
Sec 2: Qualifications 1. Honorably held office under the
government of PH or under that of
[7]
any of the provinces, cities, 1.) Naturalization in foreign country
municipalities or political subdivision 2.) Express renunciation of citizenship
therof 3.) Subscribing to an oath of allegiance to
2. Established new industry or support consti or laws of foreign country
introduced a useful invention in PH upon attaining 21 years of age or more.
3. Married a Filipino woman PROVIDED:
4. Engaged as teacher in PH in public Filipino may not divest himself of PH
or recognized private school not citizenship in any manner while Republic of
established for exclusive instruction PH is at war with any country
of children of persons of particular 4.) By rendering service to, accepting
nationality or race, in any of the commission in armed forces of foreign
branches of education or industry for country
a period of not less han 2 years. PROVIDED:
5. Born in PH Rendering service to acceptance of such
commission in the armed forces of foreign
Sec 4: Who are disqualified country and taking of an oath of allegiance
1. Opposed to organize government or incident thereto with consent of Rep of PH
affiliated with any association or group of shall not divest a Fil of his PH citizenship if
persons who uphold and teach doctrines either off the following circumstances is
opposing all organized governments present
2. Defending or teaching the necessity or a. Defensive and/or offensive pact of
propriety of violence, personal assault, or allegiance with said foreign country
assassination for the success and b. Foreign country maintains armed
predominance of their ideas forces of PH territory with consent of
3. Polygamists or believers in practice of Rep of PH
polygamy PROVIDED:
4. Convicted of crimes involving moral He does so only in connection w/ his
turpitude service to said foreign country
5. Mental alienation or incurable contiguous PROVIDED FINALLY:
diseases Any Filipino citizen who is rendering
6. Persons who during period of their service to, or is commissioned in, the
residence in PH have not mingled armed forces of foreign contry under any of
socially with the Filipinos or who have the circumstances mentioned shall not be
not evinced a sincere desire to learn and permitted to participate nor vote in any
embrace all customs, traditions and election during period of his service to
ideals of Filipinos commission
7. Citizens or subjects of nations with whom Upon discharge, he shall automatically be
PH are at war during the period of war entitled to full enjoyment of his civil and
8. Citizens or Subjects of foreign country political rghts as Fil Citizens
other than US whose laws do not grant 5.) Cancelllation of cert of naturalization
Filipinos the right to become naturalized 6.) Having been declared by competent
citizens or subject therof authority a deserter of PH armed forces
in time of war unless subsequently, a
LOSS OF CITIZENSHIP plenary pardon or amnesty has been
Grounds for loss of Citizenship granted
[8]
7.) In case of a woman, upon her marriage
to foreigner if by virtue of laws in force of
her husband’s country she acquires his
nationality.
REAAQUISITION OF CITIZENSHIP
1. By naturalization
2. Reparation of deserters of Army, Navy or
Air Corps
3. Direct act of Congress of PH
FAMILY CODE (ART 1-6) REFER TO

HANDWRITTEN NOTES : PERSONS
NOTEBOOK
[9]
consent is essential to every marriage.
(Eaton v Eaton)
 State’s consent is manifested/ granted
vicariously by the people granted by state the
privileged authority to solemnize marriage.
The institution of marriage is so directly
conserned with public welfare that state is
third party thereto.
Art. 7. Marriage may be solemnized by: HOW DO YOU REMEMBER THE CONCEPT OF
(1) Any incumbent member of the PARTIES IN A MARRIAGE
judiciary within the court's
Officiates celeb
jurisdiction; STATE of marriage
through person
(2) Any priest, rabbi, imam, or minister of solemnizing the
any church or religious sect duly same
authorized by his church or religious
sect and registered with the civil  Such MAN person MUST have
WIFE
registrar general, acting within the authority from the
limits of the written authority granted government at time of celebration ofr
by his church or religious sect and marriage.
provided that at least one of the
 Article 7 defines the limits and scope of
contracting parties belongs to the
solemnizing officer's church or authority granted to the solemnizers.
religious sect;  IF THEY FAIL TO COMPLY W/ ANY
REQUISITES MANDATED BY LAW, such
(3) Any ship captain or airplane chief marriage is generally void in absence of a
only in the case mentioned in Article formal requisite (Authority of solemnizing
31;
officer) [except if parties believed in good
(4) Any military commander of a unit to faith that such person is authorize to do so]
which a chaplain is assigned, in the THE WHO?
absence of the latter, during a military 1. JUDGES  Can solemnize marriage
operation, likewise only in the cases ONLY w/in their court’s
mentioned in Article 32; jurisdiction
 If solemnized beyond his
(5) Any consul-general, consul or vice- jurisdiction, there is
consul in the case provided in Article absence of formal
10. requisite. Hence marriage
is void.
AUTHORIZED SOLEMNIZERS OF  When judge solemnizes
MARRIAGE marriage outside his
 Marriage have always been considered as court’s jurisdiction, there
involving questions of public policy and is resultant irregularity in
formal requisite laid down
interest of other than those of contracting
in Art 3, which may
parties and should therefore be construed in subject the officiating
accordance with such policy. (Cunningham v. official to administrative
Cunningham) liability [that statement is
 Need to limit persons who solemnize erroneous] Law clearly
marriage.State being an interested party, its provides that judge has
[10]
authority only if he/she religious sector
solemnizes w/in his/her -Written authority granted
jurisdiction. Non- to priest by his sect may
observance of this rule is impose limitation as to
not mere irregularity place where he could
because it generally solemnize marriage.
makes marriage null and (Navarro v. Domagtoy)
void. (Navarro v. Domagtoy) 3. SHIP  FOLLOWING
 But since principal issue CAPTAIN REQUISITES MUST
in Domagtoy case AND CONCUR
involves liability of judge AIRPLANE 1. Marriage in
and not validity of CHIEF Articulo Mortis
marriage, said statement 2. Between
is mere obiter dictum. passengers or
 Supreme Court justice crew members
could solemnize 3. Generally
marriages anywhere in the ship/plane must
Philippines (Jurisdiction is be at sea or plane
of National Scope) must be in flight
2. PRIEST,  A priest means one  Assistant Pilot
RABBI, especially consecrated to  Even if he assumes
IMAM OR service of a divinity and command .
MINISTER considered as the medium  No law allowing such
OF ANY
through whom worship, assumption of authority
CHURCH
OR prayer, sacrifice or other for purposes of
RELIGIO service o be offered to one solemnizing marriage
US being worshipped and  Marriages can be
SECTOR pardon, blessing, and solemnized during stop
deliverance, obtained by overs at ports of call.
worshiper as priest of [means that voyage is
Baal, or of Jehovah or a not yet terminated.]
Buddhist priest. (Adong v. 4. MILITARY  FOLLOWING
Cheong Seng Gee) COMMANDER REQUISITES MUST
 FOUR REQUISTES THAT CONCUR
MUST CONCUR TO 1. Must be a military
VALIDLY SOLEMNIZE A commander of unit
MARRIAGE 2. Commissioned
1. Duly authorized by Officer
religious sector 3. Chaplain must be
2. Act w/in limits of assigned to such
written authority unit
granted by church or 4. Chaplain must be
religious sect absent at time of
3. Register w/ civil marriage
registrar general 5. Marriage must be
4. At least one of one of articulo
contracting parties mortis
whose marriage 6. Contracting parties
he/she is to whether members of
solemnize belongs AF or civilians must
to his/jer church or be within zone of
[11]
military operation. as husband and
 If chaplain is present, he wife.Declaration shall be
must be the one who contained in a marriage
should solemnize the cert which shall be
marriage (Art 7 (2) ) signed by contracting
o COMMISSIONED parties and their
OFFICER means his rank witnesses and attested
should start from 2nd by their solemnizing
lieutenant, ensign and officer
above  Marriage may be
o UNIT refers to a battalion solemnized other place
under present table of provided they shall
organization and not mere request said official in
company writing.
o WITHIN ZONE OF  Marriage between
MILITARY OPERATIONS Filipino and foreigner
implies widespread of abroad solemnized by
military activity over area PH consul [VOID]
and does not refer to a  Very authority of consul
simulated exercise beause is limited to Filipino
it requires absence of citizens. (absence of
civilian authorities formal req)
-May solemnize marriage  EXCEPTION:
even if contracting parties do Marriage between
not belong to his/her unit foreigner and Fil citizen
?CHAPLAIN- member of a abroad solemnized by
religious clergy who does PH consul assigned in
work in armed forces that country is recognized
5. CONSUL-  Consular agent cannot as valid in said host
GENERAL solemnize marriage country. (Art 26)
, CONSUL  They can solemnize  NOT AUTHORIZED TO
OR VICE marriage abroad only SOLEMIZE MARRIAGE
CONSUL when the contracting WITHIN PH
parties are both Filipino 6. MAYOR  Local government code
citizens of Jan 1, 1992
 They act as solemnizer of  Vice mayor of
marriage and perform municipality acting as
duties of local civil mayor has authority to
registrar such as solemnize marriage.
issuance of marriage
license. GOOD FAITH OF PARTIES
 Solemnities established  Under Art 35 (2), if marriage was
by PH laws shall be
solemnized by person not legally
observed in
execution.(Art 17 CC) authorized to solemnize a marriage and
 Thus contracting parties either the contracting parties believed in
shall personally appear good faith that such solemnizing officer
before him and declare in had such authority, then marriage shall be
presence in not less than considered as valid.
2 witnesses of legal age
that they take each other
[12]
Article. 8. The marriage shall be solemnized of Compliance issued by Family planning
publicly in the chambers of the judge or in Office
open court, in the church, chapel or temple,  Certifying that they had duly received
or in the office the consul-general, consul or adequate instructions and info on
vice-consul, as the case may be, and not responsible parenthood, family planning,
elsewhere, except in cases of marriages breast feeding and infant nutrition.
contracted on the point of death or in remote (well, yun lang most couples in PH, nanganak na
places in accordance with Article 29 of this muna’t lahat lahat ng basketball team bago pa
magpakasal)
Code, or where both of the parties request the
solemnizing officer in writing in which case Art. 10. Marriages between Filipino
the marriage may be solemnized at a house citizens abroad may be solemnized by a
or place designated by them in a sworn consul-general, consul or vice-consul of
statement to that effect. the Republic of the Philippines. The
issuance of the marriage license and
VENUE the duties of the local civil registrar and
 Non-observance will not invalidate of the solemnizing officer with regard to
marriage but can subject persons who the celebration of marriage shall be
cause the violation to civil, criminal or performed by said consular official.
administrative liability
 EXCEPTIONS CONSULAR OFFICIALS
1.) Articulo Mortis  Duties of LCR and solemnizing officer:
2.) In a remote place in accordance with performed by them abroad.
Art 29 FC  Marriage ceremony shall be in accordance
3.) Both parties request a solemnizing with laws of the PH because Art 17 of CC
officer in writing pertinently provides that when contracts,
(Navarro v. Domagtoy) among others are executed before
Art. 9. A marriage license shall be issued by diplomatic or consular officials, among
the local civil registrar of the city or others are executed before the diplomatic
municipality where either contracting party and consular officials of RP in a foreign
habitually resides, except in marriages where country, solemnities by PH laws shall be
no license is required in accordance with observed in their execution
Chapter 2 of this Title
PLACE OF ISSUE Art. 11. Where a marriage license is

 Local Civil registrar of city or municipality required, each of the contracting parties
where either of them resides. shall file separately a sworn application
 If contracting parties obtain marriage for such license with the proper local
license in place other than place where civil registrar which shall specify the
ether of them resides, it is MERELY AN following:
IRREGULARITY (People v. Janssen) (1) Full name of the contracting party;
R.A 10354 (2) Place of birth;
“The responsible parenthood and (3) Age and date of birth;
reproductive health act of 2012” (4) Civil status;
 No marriage license shall be issued by
LCR unless applicants present a Certificate
[13]
(5) If previously married, how, when and  If LCR has knowledge of some legal
where the previous marriage was impediments, HE/SHE CANNOT
dissolved or annulled; DISCONTINUE PROCESS OF
(6) Present residence and citizenship; APPLICATION
(7) Degree of relationship of the  Must only note down the legal impediments
contracting parties; in application and thereafter issue marriage
(8) Full name, residence and citizenship license otherwise stopped by court.
of the father;
(9) Full name, residence and citizenship Art. 12. The local civil registrar, upon
of the mother; and receiving such application, shall require the
(10) Full name, residence and presentation of the original birth certificates
citizenship of the guardian or person or, in default thereof, the baptismal
having charge, in case the contracting certificates of the contracting parties or
party has neither father nor mother and copies of such documents duly attested by
is under the age of twenty-one years. the persons having custody of the originals.
The applicants, their parents or These certificates or certified copies of the
guardians shall not be required to documents by this Article need not be sworn
exhibit their residence certificates in to and shall be exempt from the documentary
any formality in connection with the stamp tax. The signature and official title of
securing of the marriage license the person issuing the certificate shall be
sufficient proof of its authenticity.
PURPOSE OF DOCUMENTARY If either of the contracting parties is unable to
REQUIREMENTS produce his birth or baptismal certificate or a
 Concern of state to make marriages the certified copy of either because of the
secure and stable institution they should be destruction or loss of the original or if it is
(Kilburn v. Kilburn) shown by an affidavit of such party or of any
 Mainly, task of seeing to it that these other person that such birth or baptismal
documentary proofs are accomplished is certificate has not yet been received though
addressed to Local civil registrar to secure the same has been required of the person
publicity and require a record to be made of having custody thereof at least fifteen days
marriage contracted. prior to the date of the application, such party
 It is also to discourage deception and may furnish in lieu thereof his current
seduction. residence certificate or an instrument drawn
 Prevent illicit intercourse under guise of up and sworn to before the local civil
matrimony and relieve from doubt the status registrar concerned or any public official
of parties who live together as man and wife. authorized to administer oaths. Such
(State v. Walker) instrument shall contain the sworn
declaration of two witnesses of lawful age,
MARRIAGE APPLICATION setting forth the full name, residence and
 Can be obtained by ANYBODU citizenship of such contracting party and of
 LCR has no choice but to accept his or her parents, if known, and the place
application and process the same up to the and date of birth of such party. The nearest of
time of the issuance of the marriage kin of the contracting parties shall be
license. preferred as witnesses, or, in their default,
[14]
persons of good reputation in the province or authorized by law to administer oaths. The
the locality. personal manifestation shall be recorded in
The presentation of birth or baptismal both applications for marriage license, and
certificate shall not be required if the parents the affidavit, if one is executed instead, shall
of the contracting parties appear personally be attached to said applications
before the local civil registrar concerned and
swear to the correctness of the lawful age of NO EMACIPATION BY MARRIAGE
said parties, as stated in the application, or  No more emancipation by marriage under FC
when the local civil registrar shall, by merely  Emancipation is attained if child reaches age
looking at the applicants upon their of 18 years. (Art 234 as ameded by R.A
personally appearing before him, be 6809) [AN ACT LOWERING THE AGE OF
convinced that either or both of them have MAJORITY FROM TWENTY-ONE TO
the required age. EIGHTEEN YEARS, AMENDING FOR THE
PURPOSE EXECUTIVE ORDER
NUMBERED TWO HUNDRED NINE, AND
Art. 13. In case either of the contracting FOR OTHER PURPOSES]
parties has been previously married, the  Emancipation shall terminate parental
applicant shall be required to furnish, instead authority over the person and property of the
of the birth or baptismal certificate required in child who shall then be qualified and
the last preceding article, the death certificate responsible for all acts of civil life, save the
of the deceased spouse or the judicial decree exceptions established by existing laws in
of the absolute divorce, or the judicial decree special cases. (Art. 236.)
of annulment or declaration of nullity of his or  The act by which one who was unfree. or
her previous marriage. under the power and control of another, is
In case the death certificate cannot be set at liberty and madeliis own master (Black
secured, the party shall make an affidavit Law Dictionary)
setting forth this circumstance and his or her
actual civil status and the name and date of PARENTAL CONSENT
death of the deceased spouse.  If any of the contracting parties not being
emancipated by previous marriage is =< 18
Art. 14. In case either or both of the y/o but > 21. Consent of father, mother,
contracting parties, not having been surviving parent, or guardian or persons
emancipated by a previous marriage, are having legal charge of them. [in order
between the ages of eighteen and twenty-one, mentioned must be obtained before
they shall, in addition to the requirements of marriage license can be issued to
the preceding articles, exhibit to the local civil contracting parties]
registrar, the consent to their marriage of  Marrying age and majority are both 18
their father, mother, surviving parent or years of age.
guardian, or persons having legal charge of  Nevertheless, contracting parties between
them, in the order mentioned. Such consent 18 to below 21 MUST STILL obtain
shall be manifested in writing by the consent of parents as required under 2nd
interested party, who personally appears par of Art 236
before the proper local civil registrar, or in the  NON-COMPLIANCE however does ot
form of an affidavit made in the presence of make marriage invalid or void but merely
two witnesses and attested before any official annullable. Statute being regarded as
[15]
directory only in absence of any provision (21), they shall, in addition to
the requirements of marriage,
declaring such marriage absolutely void. secure the consent to their
(Browning v. Browning) marriage of their father,
 Parental consent required of parties does mother, surviving parent or
guardian, or persons having
not add anything to legal capacity of said legal charge of them, in the
comtracting partees, as the law itself order mentioned (Article 14,
declares that people 18 y/o and above can Ibid.).
legally and validly contract marriage.

 Required parental consent provision simply
Art. 15. Any contracting party between the
means that said contracting parties “may
age of twenty-one and twenty-five shall be
not be licensed to marry upon their own
obliged to ask their parents or guardian for
consent alone, but consent of parents must
advice upon the intended marriage. If they do
be added thereto” (Cushman v. Cushman)
not obtain such advice, or if it be unfavorable,
 Lack of consent does not affect validity of
the marriage license shall not be issued till
marriage, but only subjects those who
after three months following the completion
have neglected to acquire it to the
of the publication of the application therefor.
penalties of law. (Cushman v. Cushman)
A sworn statement by the contracting parties
 IF ANY OF THE CONTRACTING
to the effect that such advice has been
PARTIES IS BELOW 18 Y/O, MARRIAGE
sought, together with the written advice
IS VOID REGARDLESS OF EXISTENCE
given, if any, shall be attached to the
OR NON-EXISTENCE OF CONSENT OF
application for marriage license. Should the
PARENTS.
parents or guardian refuse to give any advice,
 Age of consent is the age at which person
this fact shall be stated in the sworn
are considered in law to be capable into
statement.
marriage relation.
BRIEF HISTORY:
Art. 16. In the cases where parental consent
BEFORE FC Any male aged 16 or upwards,
and any female of the age of or parental advice is needed, the party or
14 or upwards, not under any parties concerned shall, in addition to the
of the impediments mentioned
in Articles 80 to 84 of the Civil requirements of the preceding articles, attach
Code, may contract marriage a certificate issued by a priest, imam or
(Article 54, Civil Code of the
minister authorized to solemnize marriage
Philippines).
If the male is less than 20 under Article 7 of this Code or a marriage
years old and the female is counselor duly accredited by the proper
less than 18 years old, they
shall be required to obtain the government agency to the effect that the
consent to their marriage of contracting parties have undergone marriage
their father, mother or counseling. Failure to attach said certificates
guardian, or persons having
legal charge of them, in the of marriage counseling shall suspend the
order mentioned (Article 61, issuance of the marriage license for a period
Ibid.).
of three months from the completion of the
EFFECTIVITY OF Marrying age of both the
parties to a marriage was publication of the application. Issuance of the
FC
fixed at eighteen (18) years marriage license within the prohibited period
old (Article 5, Family Code of
the Philippines). shall subject the issuing officer to
In case either or both parties administrative sanctions but shall not affect
are between the ages of the validity of the marriage.
eighteen (18) and twenty-one
[16]
Should only one of the contracting parties  Notice: request all persons having
need parental consent or parental advice, the knowledge of any impediment to advice LCR
other party must be present at the counseling therof.
referred to in the preceding paragraph. 2.) Issue marriage license after completion
of period of publication.
PARENTAL ADVICE  However if parties between ages of 21-
 Absence does not affect marriage 25 do not obtain advice of parents or if
 Does not even make marriage annullable such advice is unfavorable, LCR shall
 While it is not an essential nor formal not issue marriage license til after 3
requirement under Art 2 & 3 prescribing months following completion of
parental advice in keeping with PH tradition publication
and does not bar marriage totally.  WHAT IF ISSUED W/IN 3 months?!
 It is just a vehicle to induce further and ore  Marriage is valid.
mature deliberation over decision to get  Parental consent required or Parental
married. advice needed, failure of parties to
attach such application a certification that
REMEMBER they have undergone marriage consoling
PARENTAL CONSENT V. PARENTAL ADVICE shall suspend issuance of ML for period
At least 18 and below 21 to 25 years of age of 3 months.
21  Issuance of ML w/in prohibited period
Annulable {Defect in Does not affect
shall subject issuing officer to
essential requirement } marriage
administrative sanctions but shall not
affect validity of marriage
Art. 17. The local civil registrar shall prepare a
notice which shall contain the full names and Art. 18. In case of any impediment known to
residences of the applicants for a marriage the local civil registrar or brought to his
license and other data given in the attention, he shall note down the particulars
applications. The notice shall be posted for thereof and his findings thereon in the
ten consecutive days on a bulletin board application for marriage license, but shall
outside the office of the local civil registrar nonetheless issue said license after the
located in a conspicuous place within the completion of the period of publication,
building and accessible to the general public. unless ordered otherwise by a competent
This notice shall request all persons having court at his own instance or that of any
knowledge of any impediment to the marriage interest party. No filing fee shall be charged
to advise the local civil registrar thereof. The for the petition nor a corresponding bond
marriage license shall be issued after the required for the issuances of the order.
completion of the period of publication
DUTY OF LOCAL CIVIL REGISTRAR Art. 19. The local civil registrar shall require
1.) Post notice to inform everybody of the payment of the fees prescribed by law or
impending marriage regulations before the issuance of the
marriage license. No other sum shall be
 Posted for 10 consecutive days on bulletin
collected in the nature of a fee or tax of any
board outside office of LCR in a conspicuous
kind for the issuance of said license. It shall,
place w/in building and accessible to genera
however, be issued free of charge to indigent
public
parties, that is those who have no visible
[17]
means of income or whose income is
insufficient for their subsistence a fact CRIMINAL LIABILITY OF LOCAL CIVIL
established by their affidavit, or by their oath REGISTRAR
before the local civil registrar. Marriage Law of 1929
 Sec 37: Influencing parties in
INVESTIGATIVE POWER OF LCR AND religious respects
COURT INTERVENTION  Sec 38: Illegal issuance or
 In case any impediment known to LCR or refusal of license
brought to his attention, he shall MERELY
NOTE DOWN PARTICULARS THEREOF Art. 20. The license shall be valid in any part
AND HIS FINDINGS THEREON ON of the Philippines for a period of one hundred
APPLICATION FOR MARRIAGE twenty days from the date of issue, and shall
LICENSE. be deemed automatically canceled at the
 He is nonetheless duty bound to issue expiration of the said period if the contracting
license after payment of necessary fees parties have not made use of it. The expiry
unless exempted due to indigence, after date shall be stamped in bold characters on
completion of period of pub or after period the face of every license issued.
of 3 months.
 Law does not restrain LCR from MARRIAGE LICENSE ANND DATE OF
investigating any impediment on part of ISSUE
contracting parties but LCR is only  Valid only within PH and not abroad
generally prohibited from withholding  Good for 120 days from date of issue
marriage license despite legal impediment  Date of signing of LCR =Date of issue
(J Caguioa)  Automatically ineffective upon expirty.
 Purpose of Art 18 as agreed upon by
committee members is to ELIMINATE any Art. 21. When either or both of the contracting
opportunity of extortion or for it to be a parties are citizens of a foreign country, it
source of graft. shall be necessary for them before a marriage
 Only court intervention directing non- license can be obtained, to submit a
issuance of ML can empower LCR to certificate of legal capacity to contract
validly refuse to issue said license. marriage, issued by their respective
 MAY BE BROGHT BY LCR HIMSELF OR diplomatic or consular officials.
ANY INTERESTED PARTY. Stateless persons or refugees from other
countries shall, in lieu of the certificate of
 What if LCR is pasaway and issues ML legal capacity herein required, submit an
despite injuction then nakasal na ang mga affidavit stating the circumstances showing
beshies? such capacity to contract marriage.
MARRIAGE STILL VALID as validity of
ML is not affected by violation of CERTIFICATE OR AFFIDAVIT OF LEGAL
injunction. [mere irregularity in formal CAPACITY
requisite of marriage license]  Citizens of Foreign country: contract
 Does not affect validity of marriage in PH
marriage but party or parties  If they are BOTH freigners and intent to have
responsible shall be civilly, criminally marriage solemnize by those mentioned in
and administratively liable. Art 7 of FC or mayor pursuant to LGC, then
[18]
they have to SECURE MARRIAGE LICENSE DESIRE TO HAVETHEIR MARRIAGE
IN PH SOLEMNIZED BY THIEIR CONTRY’S
 Before issuance of ML, they have to submit a CONSUL GENERAL IN PH
cert of legal capacity.  No need to obtain ML if their country’s laws
 Cert of Leg Cap is necessary because PH in allow the same.
so far as marriage is concerned, adhere to
law of contracting parties with respect to their Art. 22. The marriage certificate, in which the
legal capacity to marry. parties shall declare that they take each other
16 y/o US Legally capacitated to marry in as husband and wife, shall also state:
Citizen US wants to marry Fil here or (1) The full name, sex and age of each
another foreigner contracting party;
 By obtaining cert of (2) Their citizenship, religion and habitual
legal capacity stating
residence;
that in US, persons
under 16 years of age (3) The date and precise time of the
can be validly married. celebration of the marriage;
 Show to proper lcr (4) That the proper marriage license has been
where he is residing in issued according to law, except in marriage
PH provided for in Chapter 2 of this Title;
 Marriage license can (5) That either or both of the contracting
be subsequently
parties have secured the parental consent in
issued
 W/O cert of legal cap, LCR will not issue appropriate cases;
ML. (6) That either or both of the contracting
 Law clearly provides that as to foreigner, parties have complied with the legal
this is a necessary requisite before ML requirement regarding parental advice in
can be obtained. appropriate cases; and
EXCEPTION to the rule that LCR even if finds an (7) That the parties have entered into
impediment in impending marriage must
marriage settlement, if any, attaching a copy
nevertheless issue the marriage license, unless
at his own instance, or that of an interested party, thereof.
he is judicially restrained from issuing marriage
license. Art. 23. It shall be the duty of the person
EH…. What if chaka si LCR, nag-issue pa rin solemnizing the marriage to furnish either of
then kinasal yung mga atat na beshies. the contracting parties the original of the
 Marriage still considered valid as this is marriage certificate referred to in Article 6
merely an irregularity in complying with the
and to send the duplicate and triplicate
formal requirement of law in procuring
marriage license. copies of the certificate not later than fifteen
days after the marriage, to the local civil
registrar of the place where the marriage was
STATELESS PERSONS OR REFUGEES solemnized. Proper receipts shall be issued
 Required to file an affidavit stating by the local civil registrar to the solemnizing
circumstances showing such capacity to officer transmitting copies of the marriage
contract marriage in lieu of certificate of certificate. The solemnizing officer shall
legal cap. retain in his file the quadruplicate copy of the
marriage certificate, the copy of the marriage
IF CONTRACTING PARTIES WHO ARE certificate, the original of the marriage license
CITIZENS OF FOREIGN COUNTRY and, in proper cases, the affidavit of the
[19]
contracting party regarding the solemnization  Mere photostat of marriage cert is a
of the marriage in place other than those worthless piece of paper (Vda De Chua v.
mentioned in Article 8 CA)
 But if such Photostat copy emanated from
PRESUMPTION OF MARRIAGE Office of LCR and duly certified by LCR as
 Man & Woman deporting themselves as an authentic copy of the records in his
husband and wife have entered into lawful office such certified Photostat copy is
contract of marriage [presumption admissible as evidence.
satisfactory if uncontradicted]  If presented in court w/o objection from
 Presumption may be contradicted and opposing parties and consequently
overcome by evidence. admitted by court, said photostaat copies
 Law and public policy lean toward are deemed sufficient proof of facts
legalizing matrimony contained therein and therefore can be
 Presumption gains strength through lapse proof of marriage. (Sy v CA)
of time.  Baptismal certs, birth certs, jud deci, and
 When celebration of marriage is once family bible in which names of spouses
shown, the contract of marrage, capcity of have been entered as married are good
parties and fact everything necessary for evidences of marriage (Trinidad v. CA)
validity of marriage, in absence of proof to  Cert of marriage made many years after
contrary will be presumed (Gaines v. New marriage is inadmissible especially where
Orleans) there was no register of marriage in official
 Public policy should aid acts intended to records (Gaines v. Relf)
validate marriage and should retard acts  Failure to present marriage cert is not fatal
intended to invalidate marriages. This is in case where marriage is in dispute as the
necessary for the order of society. (Adong parties can still rely on presumption of
v. Cheong Seng Gee) marriage (Rivera v. IAC)
 If shown that either/nnoth parties have  Abence of record of the contested
been previously married and that such wife marriage was asserted to assail the
or husband of first marriage is still living, existence of marriage, SC rehected
does not destroy prima facie legality of last assertions by stating:
marriage. Presumption is that former 1. Although marriage contract is
marriage has been legally dissolved and considered a primary evidence of
burden of proving that it has not rests upon marriage, its absence is not always
party seeking to impeach the last marriage. proof that no marriage took place.
(Wenning v. Teeple; Son Cui v. Evidence need not necessarily or
Guepangco) directly establish marriage but must at
least be enough to strengthen the
PROOF OF MARRIAGE presumption of marriage. These are
 May be proved by evidence of any kind public documents which are prima
(Pugeda v. Trias) facie evidence of facts stated herein.
 Primary evidence of marriage is the No clear and convincing evidence is
marriage contract or marriage certificate sufficient to overcome the presumption
(Lim Tanhu v. Ramolete) of the truth of recitals therein was
presented by petitioners.
[20]
2. Petitioner’s own witness whose alleged sposes and statement of such
testimony they primarily relied upon to marriage in subsequent documents are
support their proposition confirmed that competent evidence to prove the fact of
Guillermo Rustia had proposed marriage (Pugeda v. Trias)
marriage to Josefa Delgado and that  Solemn statement in will of deceased also
eventually two had lived together as admissible as proof of marriage. (Son Cui
husband and wife [this could not but v. Guepangco)
strengthen the presumption of  Mere cohabitation is not direct proof or
marriage] marriage which must be proved by proper
3. Baptismal cert was conclusive proof documents or by oral testimony in case
only of thee baptism administered by these have been lost (Santiago v. Cruz)
priest who baptized child. [No proof of  Conduct of parties in order to constitute as
the veracity of declarations and evidence of marital consent must be
statements contained therein such as something more than mere living together;
alleged single or unmarried civil status it must be an association, consciously and
of Josefa Delgado] openly as h&w (Cox v. State)
Petitioners failed to rebut presumption of
marriage of Guillermo Rustia and Josefa PROOF TO ATTACK VALIDITY OF
Delagdo.(Vda. De La Rosa v. Heirs of MARRIAGE
Mariciana Rustia Vda. De Damian)  Evidence must be strong, distict and
satisfactory (Murchison v. Green)
 Testimony by one of parties or witess to  Statement of civil status of person in cert of
marriage or by person who solemnized title issued to him is not conclusive to show
marriage is admissible (Pugeda v. Trias) that he is not actually married. (Perido v
 Testimonies must themselves be credible Perido)
and must proceed from witnesswho is  Petitioner failed to assert absence of ML as
credible. (People v. Ignacio) ground of nullity in her petition based solely
 It is well-settled that entries in official on psychological incapacity under Art 36
records made in performance of a duty by and where she only invoked such absence
a public officer of PH or by person in of marriage license in her appeal to SC.
performance of duty specially enjoined by Supreme Court made an exception to the
law, are prima facie evidence of facts general rule that litigants cannot raise an
therein stated (Young v. Magayo) issue for the firs time on appeal and
 Marriage ceremony, testimony of an consequently declared marriage due to
eyewitness sufficient should disclose not absence of marriage license. SC said that
only performance of ceremony by in order to protect substantive rights of
someone, but that all circumstances parties: IT WAS MAKING AN EXCEPTION
attending it were such as to constitute it a TO APPLICATION OF SAID GR THAT
legal marriage. (State v. Hodgskins) MARRIAGE CONTRATC ITSELF WHICH
 Fact that marriage has been solemnized WAS PRESENTED AS EVIDENCE
gives rise to presumption that there is an CLEARLY SHOWED THAT
exchange of marital vows.(Balogbog v. CA) SOLEMNIZATION OF MARRIAGE
 Public and open cohabitation as husband OCCURRED BEFORE ISSUANCE OF
and wife after alleged marriage, birth and MARRIAGE LICENSE. (Sy v CA)
baptismal certs of children borne by
[21]
 While obtaining ML in place which is not evidences disproving existence of marriage
place of residence of any contracting also have probative value such that the
parties is merely an irregularity that does evidence if weighted against each other
not invalidate marriage (People v. prepodered in favor of assertion that there
Janssen) was no marriage (Sarmiento v. CA)
 Such circumstances may nevertheless be
an indication that ML is spurious or non- DECLARATORY RELIEF
existent which should necessitate further  Parties are not certain whether under law
investigation as to its authenticity. (Sy v they can proceed with marriage can file a
CA) petition for declaratory relief to seek from
 Official Cert issued by Office of LCR of court a judgment of their capacity o marry.
municipalty where particular marriage  Petition for declaratory relief may be brought
license has been issued stating that after by any person interested under deed, will
earnest effort to locate and verify existence contract or other written instrument
of particular ML, said office has no record  Whose right are affected for purpose of
of ML or is issued to another couple or is determing any question of construction or
spurious or fabricated is a convincing validity arising therefrom and for
evidence to destroy the validity of marriage declaration of his/her right or duties
on ground of absence of valid ml (Republic thereunder. (Republic v. Orbecido)
of PH v CA)
(REMEMBER THE PREVIOUS Art. 24. It shall be the duty of the local civil
ASSIGNED CASES) registrar to prepare the documents required
 In case where LCR certified that there was by this Title, and to administer oaths to all
no marriage license despite exertion of all interested parties without any charge in both
efforts but with an admission that, due to cases. The documents and affidavits filed in
work load of said office, it cannot give full connection with applications for marriage
force in locating marriage license licenses shall be exempt from documentary
compounded by fact that the custodian stamp tax.
already retired. SC did not allow the nullity
of marriage on ground of absence of Art. 25. The local civil registrar concerned
marriage license. (Servilla v. Cardenas) shall enter all applications for marriage
 Marriage followed by 40 years of licenses filed with him in a registry book
uninterrupted marital life > impugn and strictly in the order in which the same are
discredit after dead of husband through received. He shall record in said book the
alleged prior chinese marriage (Sy Joe names of the applicants, the date on which
Lieng v. Sy Quia) the marriage license was issued, and such
 However any presumption of marriage other data as may be necessary.
from fact that there was cohabitation
bertween man and woman many years ago EFFECT OF DUTY OF LOCAL CIVIL
may be considered offset by fact that for REGISTRAR
last 35 years they lived separately and  Specific government official charged with
several thousandmiles away from each preparation and keeping of all official
other (Fernandez v. Puath) documents in connection with marriage, any
 While birth certificates can prove fact of certification issued by him/her in connection
marriage between parties, pieces of with any matter involving marriage of any
[22]
particular individual within his/her jurisdiction
is given high probative value. (Rep of PH v.
CA)
MARRIAGE REGISTER
 Office of LCR keeps marriage rester of all
persons married in its locality.
Art. 41. A marriage contracted by any person
during subsistence of a previous marriage shall be
null and void, unless before the celebration of the
subsequent marriage, the prior spouse had been
Art. 26. All marriages solemnized outside the absent for four consecutive years and the spouse
present has a well-founded belief that the absent
Philippines, in accordance with the laws in spouse was already dead. In case of
force in the country where they were disappearance where there is danger of death
solemnized, and valid there as such, shall under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an
also be valid in this country, except those
absence of only two years shall be sufficient.
prohibited under Articles 35 (1), (4), (5) and
Art. 52. The judgment of annulment or of absolute
(6), 36, 37 and 38. (17a)
nullity of the marriage, the partition and distribution of
Where a marriage between a Filipino citizen the properties of the spouses and the delivery of the
and a foreigner is validly celebrated and a children's presumptive legitimes shall be recorded in
divorce is thereafter validly obtained abroad the appropriate civil registry and registries of property;
otherwise, the same shall not affect third persons. (n)
by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall have Art. 53. Either of the former spouses may marry
capacity to remarry under Philippine law. again after compliance with the requirements of
the immediately preceding Article; otherwise, the
subsequent marriage shall be null and void
Art. 36. A marriage contracted by any party

who, at the time of the celebration, was
psychologically incapacitated to comply with
the essential marital obligations of marriage,
shall likewise be void even if such incapacity
becomes manifest only after its
solemnization.
Art. 37. Marriages between the following are

OVERVIEW: incestuous and void from the beginning,
whether relationship between the parties be
Art. 35. The following marriages shall be void legitimate or illegitimate:
from the beginning:
(1) Between ascendants and descendants of
any degree; and
(1) Those contracted by any party below
eighteen years of age even with the (2) Between brothers and sisters, whether of
consent of parents or guardians; the full or half blood. (81a)
(4) Those bigamous or polygamous Art. 38. The following marriages shall be void
marriages not failing under Article 41; from the beginning for reasons of public
policy:
(5) Those contracted through mistake of [23]
one contracting party as to the identity of (1) Between collateral blood relatives
the other; and whether legitimate or illegitimate, up to the
fourth civil degree;
(6) Those subsequent marriages that are
(2) Between step-parents and step-children;
 If both are foreigners, lex loci
celebrationis applies.
EXCEPTIONS:
1.) Contracted by national who is below
18 y/o (No legal capacity to contract
marriage under Art 35) [When both
parties contracting marriage abroad
are Fil citizens]
2.) Incestuous marriage (ewww)
3.) Bigamous or Polygamous except as
provided in Art 41 FC
4.) Contracted through Mistake of one
party as to identity of the other (like
twin na wa naman imik di naman pala
siya fiancé mo)
5.) Contracted following the Annulment
or declaration of nullity of a previous
marriage but before partition
6.) When any of the party is
Psychologically incapacitated when
marriage was celebrated (Art 36)
7.) Marriage is void by reason of Public
Policy
VALID PROVISIONS
 Family code expressly provides that except
for marriages prohibited under Art 35 (1),
(4), (5), (6) , 36,37,38, marriages
solemnized abroad and which are valid
there as such are recognized as valid here.
 PH follows “lex loci celebrationis rule”
AS TO VALIDITY OF MARRIAGE (SUMMARY)
GENERAL RULE  General principle of international and
 Marriages contracted outside the PH interstate law that validity of marriage, so
and are performed in accordance with far at least as it depends upon the
laws in force in country where they preliminaries, and manner or mode of its
were solemnized are valid in this celebration is to be determined in
country reference of law of place where it is
 In case Filipino contracts foregn celebrated.Therefore, marriage valid
marriage which is null and void in place celebrated will generally be regarded as
where it was solemnized, same shall valid everywhere and where there is bona
also be null and void in PH even if such fide attempt on part of parties to effect a
was valid if celebrated under PH laws. legal marriage, every presumption will be
[24]
in favor of the marriage. (Medway v. laws in force in country where they are
Needham) solemnized.
 IF however, foreign marriage is to be
 Conversely, marriage void where it is solemnized inside PH consulate abroad,
celebrated is void everywhere. But under such marriage must observe the forms and
the operation of rule that all presumptions solemnities established by PH laws.
favor marriage and every bona fide attempt
to effect it, and since courts are extremely EXCEPTIONS
reluctant and rightly so, to declare  Under FC, if either or both contracting parties
marriage void exceptfor strongest and are Filipinos and they are below 18 years of
most obvious reasons, the converse rule is age, their marriage solemnized abroad will
subj to many exceptions ad will not be not be recognized in PH even if marriage is
enforced where circumstances afford a valid in place where it has been solemnized
reasonable ground for the course taken  Our law clearly adheres to the rule that
and show a bona fide attempt to effect a marrying capacity of contracting parties is
marriage. (Medway v. Needham) governed by national law of that party (PH
law)
 [ remember Art 15 stating that laws relating
MATTER OF INTERNATIONAL COMITY to family rights and duties or to status,
 Legal effect which be given by one state to conditions and legal capacity of persons are
the marriage laws of another state is binding upon citizens of PH even though
merely because of comity or because of living abroad.] #WhereverYouGo
public policy and justice demand the
recognition of such laws (Henderson v  If one is Fil and another is an alien whose nat
Henderson) laws capacitate persons below 18 y/o to
 No state is bound by comity to give effect marry: FC does not give precise solution.
in its courts to laws which are repugnant to (WELL) With respect to legal capacity, our
its own laws and policy (Brimson v. country follows the nationality rule, hence
Brimsom) should accord respect to laws of the country
 WHY? : because every sovereign state is in so far as the legal capacity to marry the
the conservator of its own morals and good foreigner is concerned.
order of society (Jackson v. Jackson) BETTER RULE: Exception under Art 26
 Each sovereign state has right to declare referring to Art 35 (1) should be construed
what marriage its will and will no recognize as referring to situation where marriage
regardless of whether participants are abroad is between a Filipino and a
domiciled w/in or w/o its borders (US ex rel Fiilipina and not between Filipino or
Modianos v. Tutle) and not withstanding Filipina and an alien married in Alien’s
such marriages validity under the laws of state where he/she is (the alien) though
foreign state where such marriages were below 18 years of age is capacitated to
contracted. (Kapigan v. Der Minassian) Marry
 Hence applying 1st paragraph of Art 26, LET’S MAKE IT CLEAR
marriages w/o license solemnized abroad INVALID [Art 35 (1) ]
and proxy marriages abroad, valid in PH if Juan 19 y/o and Juana 14 y/o married
such marriages are valid in accordance w/ abroad in a country where marriage above
13 y/o is valid.
[25]
VALID Marriage abroad where there is mistake of
Juan (17 y/o) and Maria Ozawa (33 y/o) identity of other contracting party is ALSO
married abroad where marriage below 18 y/o NOT RECOGNIZED in PH
is valid.  Even if one who committed mistake
 Take note Juan: Fil
were the foreigner spouse.
 Maria Ozawa : Alien
Bigamous and Polygamous marriages,  Spouse able to annul or to declare as null

though valid abroad shall likewise not be and void his/her marriage but failed to
recognized in PH. record judicial decree with LCR, to partition
BIGAMOUS POLYGAMOUS & distribute their properties and deliver
 Committed by  Act or state of presumptive legitime of their children, any
person who a person who, subsequent marriage of either spous shall
cotracts 2nd nowing that he be void. [Art 53 in relation to Art 52 of FC]
marriage before has 2 or more  Marriage by Fil to a person who is
former marriage wives or that psychologically incapacitated to perform
has been legally he has two or essential marital obligations abroad even if
dissolved or more
valid in foreign country where it has bee
before the husbands
absent spouse marries solemnized shall not be considered valid
has been another here.
declared - even if valid in foreign country where it
presuptively has been solemnized shall not be
dead by means considered valid here.
of judgment
 Marriages between ascendants and
rendered in
proper descendants of any degree as well as
proceeding (US between brothers and sisters whether full or
v Mcleod) half blood are likewise not considered as
KEYWORD: KEYWORD: valid here even if such marriages were
2 marriage
nd 2 or more allowed in country where they were
#MASMALANDI celebrated. (BECAUSE THEY ARE
#Haliparot
INCESTUOS
 Marriages declared void under PH laws for
being against public policy.
Under Art 41 of FC
 Even if not illegal or not against pub policy
 Bigamous marriage may be recognized
where it was solemnized. (Art 38)
HOW?!!!
: When before marriage, one of the spouse had (CONTINUE NOTES!)
been absent for 4 consecutive years or 2
consecutive years in case where there is
danger of death and spouse present has a
well-founded belief that the absent spouse is
already dead.
<2nd marriage is valid w/o prejudice to
reappearance of absentee spouse.>
[26]
Art. 28. If the residence of either party is so

located that there is no means of
transportation to enable such party to appear
personally before the local civil registrar, the
marriage may be solemnized without
necessity of a marriage license.
Art. 29. In the cases provided for in the two

preceding articles, the solemnizing officer
shall state in an affidavit executed before the
local civil registrar or any other person legally
authorized to administer oaths that the
marriage was performed in articulo mortis or
that the residence of either party, specifying
the barrio or barangay, is so located that
there is no means of transportation to enable
such party to appear personally before the
local civil registrar and that the officer took
the necessary steps to ascertain the ages and
relationship of the contracting parties and the
absence of legal impediment to the marriage.
Art. 30. The original of the affidavit required in

the last preceding article, together with the
legible copy of the marriage contract, shall be
sent by the person solemnizing the marriage
to the local civil registrar of the municipality
where it was performed within the period of
thirty days after the performance of the
marriage.
Art. 31. A marriage in articulo mortis between

passengers or crew members may also be
solemnized by a ship captain or by an
CHAPTER 2 airplane pilot not only while the ship is at sea
MARRIAGE EXEMPT FROM LICENSE or the plane is in flight, but also during
REQUIREMENT stopovers at ports of call.
Art. 27. In case either or both of the Art. 32. A military commander of a unit, who
contracting parties are at the point of death, is a commissioned officer, shall likewise have
the marriage may be solemnized without authority to solemnize marriages in articulo
necessity of a marriage license and shall mortis between persons within the zone of
remain valid even if the ailing party military operation, whether members of the
subsequently survives. armed forces or civilians.
[27]
 EXCEPT FOR MUSLIMS who are now
Art. 33. Marriages among Muslims or among governed by Code of Muslim Personal Laws
members of the ethnic cultural communities of PH, various ethic groups in PH and
may be performed validly without the contracting parties refered to in said article
necessity of marriage license, provided they must comply with all other essential and
are solemnized in accordance with their formal requirements provided under Art 2 & 3
customs, rites or practices. of FC.
 Also solemnizing officer: Art 7.
Art. 34. No license shall be necessary for the ARTICLE 35
marriage of a man and a woman who have ARTICLE 36
lived together as husband and wife for at ARTICLE 37
least five years and without any legal
impediment to marry each other. The
contracting parties shall state the foregoing
ARTICLE 38
ARTICLE 40
ARTICLE 41
ARTICLE 44
VOID
facts in an affidavit before any person
ARTICLE 53
authorized by law to administer oaths. The
solemnizing officer shall also state under RATIONALE
oath that he ascertained the qualifications of
 Necessity and Practicality
the contracting parties are found no legal
 Policy of state to, as much as possible,
impediment to the marriage.
validate or legitimize illicit cohabitation
between persons who do not suffer any legal
EXEMPTION FROM MARRIAGE LICENSE
impediment to marry.
ARTICLE WHAT KIND
ARTICLE 27 at the point of death
ARTICLE 28 located that there is no means of FAR AREAS
transportation to enable such party to  “no means of transportation to enable such
appear personally before the local civil party to appear PERSONALLY before
registrar
ARTICLE 31 articulo mortis between passengers or LCR”
crew  Marriage may be solemnized w/o marriage
ARTICLE 32 authority to solemnize marriages in
license
articulo mortis between persons within
the zone of military operation   W/O this, illicit relationships may
ARTICLE 33 among Muslims or among members of proliferate only because parties could not
the ethnic cultural communities
(solemnized in accordance with their
get marriage license with really no fault on
customs, rites or practices.) their part.
ARTICLE34 lived together as husband and wife for at
least five years and without any legal
impediment to marry each other
 Explicitly declared by Art 3(2) as exemptions SOLEMNIZING OFFICERS UNDER ART 7 AND
to formal requirement of valid marriage THE MAYOR
license.  On basis of Art 27 all those who are
 Likewise provided for in Art 9 which provides authorized to solemnize marriage
that “marriage license shall be issued by enumerated in Art 7 & Mayor are
LCR of city or municipality where either of empowered to act as solemnizer of
contracting parties habitually reside, except marriage even w/o valid marriage license.
in marriage where no license is required in  Well, yung kailagan mo lang naman
accordance with Chapt 2 of this Title. tandaan here is that all solemnizing officers
must be a valid solemnizing officer
[28]
according to Art 7. (jurisdiction x requisites, with these laws shall be recognized
stuff like that) (ay taray pati dissolution beshy)
 In articulo mortis, even if ailing party
subsequently survives, marriage will OTHER ETHNIC GROUPS FAMILY
remain valid. CODE
CHIEF PILOT AND SHIP CAPTAINS W/O SEPARATE LAW
 Only marriages in artiuclo mortis
 When ship is at sea, plane is on flight and
Has
even during stopovers at ports of call. MUSLIM CAR
separate
 Only among their passengers and crew law
members.
MILITARY COMMANDER
 Commissioned officer (rank 2nd lieutenant, COHABITATION FOR FIVE YEARS (Art 34 FC)
ensign and above) Two distinct conditions
 Commander of a unit (at least a battalion) 1.) Live as such for at least 5 years
 Only articulo mortis and in absence of characterized by exclusivity and
chaplain (chaplain should compy w/ Art 7 continuity that is unbroken ( Republic v.
(2) Dayot)
 W/IN zone of military operations and during 2.) Be without legal impediment to marry
such military operations each other
 Either members of armed forces or (While both conditions must concur, they do not
civilians qualify each other)
MUSLIM AND ETHNIC GROUPS
 Under Civil Code, for as long as marriages “Absence of legal impediment”
of ethnic groups, pagans and Muslims  At time of marriage (J; Puno)
were performed in accordance with their
customs, rights and practices, such
marriage: VALID (Art 78 CC) (Art 76 CC repealed by Art 36 FC (NOW)
Art 36 FC)
Code of Muslim Personal Laws of PH
– Feb 4,1997 [effectively same year] 1. Lived as  Provides a broader
It does not provide that for a marriage to be husband and condition by an
valid, ML has to be procured by contracting wife for at amendment that no legal
parties least 5 years impediment exists with
2. Attained age contracting parties
 Aug 3,1988, FC took effect expressly of majority “Legal impediment”
providing that Muslims and ethnic 3. Must be  Any possible ground or
groups are exempted only from procuring unmarried basis under fam code
a marriage license as long as marriage *mandatory whole 5 Presence and absence of
will be solemnized in accordance with years no legal impediment only considered @
their customs, rites and practices. impediment* time of celebration of marriage
ceremony
 Marry paramour  Spouse living in w/
R.A No. 6766 “Organic Act for Cordillera when legitimate paramour can avail
Autonomous Region (CAR) Art 10, Sec 2 spouse dies exception and marry
 Marriages solemnized between or (cohabited for 5 his paramour w/o
among members of indigenous tribal years) marriage license after
group/ cultural community in death of legal spouse
accordance w/ the indigenous
customary laws of place shall be valid (Office of Court Administrator v. Necessario)
and dissolution thereof in accordance  Errorneous
[29]
 Judges made statement that for exception to
apply “parties should have been capacitated to Falsity of affidavit
marry each other during entire period and not  Cannot be considered to be mere
only at time of marriage” irregularity considering that 5 year period is
 They applied Art 76 CC a substantial requirement of the law to be
 But case was administrative & does not deal w/
exempted from obtaining marriage license.
validity of marriage, therefore statement only
(De castro v. Assiadao-Ce Castro)
an obiter dictum.
DIRECTORY REQUIREMENTS
 Under exception of cohabitation for 5
 Procedure laid down in Art 29 to 30 of FC
years, contracting parties shall state the
relative to duties of S.O w/ respect to affidavit
fact of their cohabitation for at least 5 years
he/she has to execute is MERELY
and absence of any legal impediment to
DIRECTORY IN CHARACTER
marry in an affidavit before any person
 Non-observance : will not render marriage
authorized by law to administer oath.
void or annullable (Loria v. Felix)
 Solemnizing officer shall also state under  HOWEVER UNDER MARRIAGE LAW OF
oath that he ascertained qualifications of 1929, those solemnizing officers who fail to
the contracting parties and found no legal comply shall be punished by imprisonment,
impediment to marriage. Failure of by fine or both in the discretion of court.
solemnizing officer to investigate shall not
invalidate marriage. Chapter 3. Void and Voidable
Marriages
(Cosca v. Palaypayon)
 Judge solemnized marriage involving party Art. 35. The following marriages shall be void
only 18 y/o . from the beginning:
 Judge acted improperly because he should
have conducted first an investigation as to the (1) Those contracted by any party below
qualification of parties. eighteen years of age even with the consent
 Should have been alerted by the fact that child of parents or guardians;
was 18 y/o at time of marriage ceremony w/ (2) Those solemnized by any person not
means that parties started living together when
legally authorized to perform marriages
she was barely 13 y/o. Thus there was
unless such marriages were contracted with
probability that affidavit was forged.
 SC nevertheless did not state that marriage either or both parties believing in good faith
was void because clearly at time of marriage that the solemnizing officer had the legal
ceremony, parties had no legal impediment to authority to do so;
marry. (3) Those solemnized without license, except
those covered the preceding Chapter;
(4) Those bigamous or polygamous marriages
Aim of this provision not failing under Article 41;
 Avoid exposing parties to humiliation, shame (5) Those contracted through mistake of one
and embarrassment concomitant w/ contracting party as to the identity of the
scandaloys cohabitation of persons outside a
other; and
valid marriage due to publication of every
(6) Those subsequent marriages that are void
applicant’s name for marriage license. (De
Castro v. Assiadao- De Castro) under Article 53.
[30]
Marriages declared void by legislature
Let’s make memorizing easier!  There can be no void marriages outside
KINDS OF VOID MARRIAGES [L.A.P.I.S] specifically provided by law.
1.) Contrary to Law or Public Policy  Grounds for void marriages may co-exist in
2.) Absence of Essential or Formal one case
requisites Like minor na nga you, waley ka pa
3.) Either of parties is Psychologically
marriage license, deins pa you nadala
incapacitated
4.) Incestuous marriages collateral blood relative pa yung jowa mez
5.) Void Subsequent marriages within 4th civil degree of consanguinity.
 But take note it has only one cause of
action which is nullity of marriage. (Mallion
VOID MARRIAGES v. Alcantara)
 Not valid from its inception.  Well, hindi pag it is with any other
 Absence of essential and formal requisites incidental prayers like support (Mallon v.
as provided for in Art 2 & 3 FC renders Alcantara)
marrage void (Art 4 FC)
 EXCEPTIONS: VOID AND VOIDABLE MARRIAGE
ARTICLE WHAT DOES IT SAY Void is different from Voidable or annullable
27 In case either or both of the marriage under Art 45 FC
contracting parties are at the  A marriage that is annulled presupposes
point of death, the marriage may
be solemnized without necessity that it subsist but later ceases to have legal
of a marriage license and shall effect when it is terminated through court
remain valid even if the ailing action. BUT in nullifying a marriage, court
party subsequently survives simply declares a status or condition which
28 Residence of either party is so
located that there is no means of already exists from the beginning (Suntay
transportation to enable such v. Conjuanco-Suntay)
party to appear personally before
the local civil registrar VOIDABLE VOID (Void ab initio)
31 Marriage in articulo mortis
(Annullable)
between passengers or crew
members by ship captain or Valid until otherwise Considered as never to
airplane pilot declared by court have taken place and
32 military commander authority to cannot be a source of
solemnize marriages in articulo rights
mortis Can generally be Can never be ratified
33 Marriages among Muslims or ratified or confirmed by
among members of the ethnic free cohabitation or
cultural communities prescription
34 Lived together as husband and Cannot be assailed Can be attacked
wife for at least five years and collaterally except in collaterally
without any legal impediment to
direct proceeding
marry each other.
Assailed only during Can be questioned
35 (2) (2) Those solemnized by any
person not legally authorized to lifetime of parties but even after death of
perform marriages unless such after death of either, either party
marriages were contracted with parties and their
either or both parties believing in offspring will be left as
good faith that the solemnizing if the marriage had
officer had the legal authority to been perfectly valid
do so; Action prescribes Action or defense is
[31]
imprescriptible  Ruling gave more weight to procedure
Only parties (or Any proper interested rather than substantial law WHICH SHOUL
parents and guardians) party may attack void NOT BE THE CASE. Decision did not take
can assail it marriage into account that no amount of ratification,
Property regime No legal effect except
waiver, acquiescence or estoppel can
governing voidable those declared by law
marriage is generally concerning properties validate void marriage.
conjugal partnership of alleged spouses  A null and void marriage cannot be
(or absolute regarding co- validated directly or indirectly.
community) and the ownership or  In this case SC gave valid effect to an
children conceived ownership through invalid marriage which is inconsistent with
before its annulment actual joint contribution very notion of void marriages.
are considered and its effects on
legitimate children
 (Ninal v. Bayadog) BAD FAITH OR GOOD FAITH IN VOID
MARRIAGES
 Void marriages can never be ratified or
General Rule
cured by any act of the contracting parties.
 Good faith and bad faith are immaterial in
 Neither could estoppel or acquiescence
determining whether a marriage is null and
apply to remedy the infirmity.
void.
Example
Example:
1) Party minor at time of marriage – marriage  Even if a woman believed in good faith that she
is void and can still be judicially declared married a man not related to her but who in fact
void; there can be no estoppel just was his long-lost brother, her good faith will not
because parties agreed to false age. cure the infirmity even if she willingly and freely
2) In order to be exempted from procuring cohabited with him for a reasonable length of
marriage license, parties stated in their time after discovery. She can still nullify marriage
sworn statement that they were already because it is incestuous.
cohabiting continuously for 5 years to  If a person marries w/o marriage license or that is
comply with time requirement of law when spurious, and does not fall under exceptions,
in fact they cohabited for two years and marriage is void regardless of his/her good faith.
 If a person marries his first cousin knowing fully
marriage was consequently solemnized,
well of such relationship which he/she conceals
such marriage IS STILL NULL AND VOID
from his/her first cousin, marriage is still void and
on ground of absence of marriage license. it can be nullified
(De Castro v. Assidao-De Castro) Chi Ming Tsoi v. CA
(Republic v. Dayot)  Ground of psychological incapacity under Art
36 was invoked to nullify a marriage and
HOWEVER in Mallion v. Alcantara where evidence showed the spouses did not
 In not invoking ground of absence of engage in sexual intercourse but there was
marriage license in the first case and then no finding as to who between h & w refused
filing a subsequent case involving said to have sexual intercourse
 SC ruled that such absence of finding is
ground, petitioner violated the rule on
immaterial because action to declare
splitting of cause of action. marriage void may be filed by either party
 Petitioner was considered to be barred by even psychologically incapacitated one.
res judicata.
 Considered to have impliedly admitted the Chi Ming Tsoi vs. CA
validity of celebration of marriage and that (Every law student should know this tragic case)
he had therefore waived all defects. GR No. 119190, January 16, 1997
[32]
FACTS: marital obligations and the refusal is senseless
Chi Ming Tsoi and Gina Lao Tsoi was married in and constant, Catholic marriage tribunals
1988. After the celebration of their wedding, they attribute the causes to psychological incapacity
proceed to the house of defendant’s mother. than to stubborn refusal. Furthermore, one of the
There was no sexual intercourse between them essential marital obligations under the Family
during their first night and same thing happened Code is to procreate children thus constant non-
until their fourth night. In an effort to have their fulfillment of this obligation will finally destroy the
honeymoon in a private place, they went to integrity and wholeness of the marriage.
Baguio
but Gina’s relatives went with them. Again,  Doctrine of unclean hands where court
there was no sexual intercourse since the should not grant relief to wrongdoer is not
defendant avoided by taking a long walk during
a rule as applied to nullity actions because
siesta or sleeping on a rocking chair at the living
room. Since May 1988 until March 1989 they it is merely judge-made and has no
slept together in the same bed but no attempt of statutory basis.
sexual intercourse between them. Because of  In declaring marriage void, state expresses
this, they submitted themselves for medical that it does not consider a union in a void
examination to a urologist in Chinese General marriage as serving the fundmental
Hospital in 1989. The result of the physical purpose of state of fostering and nurturing
examination of Gina was disclosed, while that of
a family which is a foundation of society.
the husband was kept confidential even the
medicine prescribed. There were allegations that Hence either husband or wife in a void
the reason why Chi Ming Tsoi married her is to marriage can file a case.
maintain his residency status here in the country.  Nonetheless, party who knew that he/she
Gina does not want to reconcile with Chi Ming was entering a void marriage before its
Tsoi and want their marriage declared void on solemnization may be held liable for
the ground of psychological incapacity. On the damages b other contracting party under
other hand, the latter does not want to have their
marriage annulled because he loves her very provisions on Human Relations in CC
much, he has no defect on his part and is specially Art 19-21 thereof.
physically and psychologically capable and since  Even if party’s intention in filing a
their relationship is still young, they can still declaration of nullity were less than pure
overcome their differences. Chi Ming Tsoi and was merely to evade bigamy case,
submitted himself to another physical such fact will not prevent declaration of
examination and the result was there is not
nullity on basis of clear showing that there
evidence of impotency and he is capable of
erection. was absence of marriage license
warranting such declaration (Abbas v.
ISSUE: Whether Chi Ming Tsoi’s refusal to have Abbas)
sexual intercourse with his wife constitutes EXCEPTIONS TO GENERAL RULE THAT
psychological incapacity. GOOD FAITH AND BAD FAITH ARE NOT
RELEVANT IN VOID MARRIAGES
HELD: 1.) Art 35 (2) Those solemnized by any
The abnormal reluctance or unwillingness to person not legally authorized to perform
consummate his marriage is strongly indicative of marriages unless such marriages were
a serious personality disorder which to the mind contracted with either or both parties
of the Supreme Court clearly demonstrates an believing in good faith that the
utter insensitivity or inability to give meaning and solemnizing officer had the legal
significance tot the marriage within the meaning authority to do so;
of Article 36 of the Family Code. 2.) Art. 41. A marriage contracted by any
If a spouse, although physically capable but person during subsistence of a previous
simply refuses to perform his or her essential marriage shall be null and void, unless
[33]
before the celebration of the subsequent SCENARIO EFFECT
marriage, the prior spouse had been Only one in GF Share of party in BF in
absent for four consecutive years and co-ownership :
the spouse present has a well-founded FORFEITED
belief that the absent spouse was  In favor of common
already dead. In case of disappearance children
where there is danger of death under the Default of/ Waiver by Each vacant share
circumstances set forth in the provisions any/All common shall belong to
of Article 391 of the Civil Code, an children/their respective surviving
absence of only two years shall be descendants descendants
sufficient. Absence of Belong to innocent
For the purpose of contracting the descendants party
subsequent marriage under the In all cases forfeiture shall take place upon
preceding paragraph the spouse present termination of cohabitation
must institute a summary proceeding as  Rule above applies to all void marriages
provided in this Code for the declaration
of presumptive death of the absentee, Art. 147. When a man and a woman who are capacitated
without prejudice to the effect of to marry each other, live exclusively with each other as
reappearance of the absent spouse husband and wife without the benefit of marriage or under
a void marriage, their wages and salaries shall be owned
 Spouse may validly marry again if he/she by them in equal shares and the property acquired by both
of them through their work or industry shall be governed by
1. Has a well-founded belief that spouse is the rules on co-ownership.
dead In the absence of proof to the contrary, properties acquired
2. Procures judicial declaration of while they lived together shall be presumed to have been
presumptive death obtained by their joint efforts, work or industry, and shall be
3. At time of subsequent marriage owned by them in equal shares. For purposes of this
Article, a party who did not participate in the acquisition by
ceremony, is in good faith together with the other party of any property shall be deemed to have
subsequent spouse contributed jointly in the acquisition thereof if the former's
(otherwise marriage shall be considered void efforts consisted in the care and maintenance of the family
under Art 44 : If both spouses of the subsequent and of the household.
marriage acted in bad faith, said marriage shall Neither party can encumber or dispose by acts inter vivos
be void ab initio and all donations by reason of of his or her share in the property acquired during
marriage and testamentary dispositions made by cohabitation and owned in common, without the consent of
one in favor of the other are revoked by operation the other, until after the termination of their cohabitation.
of law.) When only one of the parties to a void marriage is in good
 Good faith: even if only one of the faith, the share of the party in bad faith in the co-ownership
contracting parties : OK shall be forfeited in favor of their common children. In case
 To be void: BOTH must be in bad faith of default of or waiver by any or all of the common children
or their descendants, each vacant share shall belong to the
respective surviving descendants. In the absence of
descendants, such share shall belong to the innocent
party. In all cases, the forfeiture shall take place upon
BAD FAITH AS AFFECTING PROPERTY
termination of the cohabitation.
DISPOSITION
As a general rule Art. 148. In cases of cohabitation not falling under the
 In void marriage, property regime is one of preceding Article, only the properties acquired by both of
the parties through their actual joint contribution of money,
co-ownership property, or industry shall be owned by them in common in
 In disposition of co-ownership at time of proportion to their respective contributions. In the absence
of proof to the contrary, their contributions and
liquidation, whether one of parties is in bad corresponding shares are presumed to be equal. The same
faith is basic consideration rule and presumption shall apply to joint deposits of money
(Art 147/148 of FC) and evidences of credit.
If one of the parties is validly married to another, his or her
share in the co-ownership shall accrue to the absolute
RULES FOR EASY UNDERSTANDING community or conjugal partnership existing in such valid
[34]
marriage. If the party who acted in bad faith is not validly before lower court, in case for support
married to another, his or her shall be forfeited in the can rule that marriage was void. (De
manner provided in the last paragraph of the preceding
Article.
Castro v. Assidao-De Castro)
The foregoing rules on forfeiture shall likewise apply even if  Direct attack – filing case precisely
both parties are in bad faith. putting forth as principal issue the nullity
of marriage.
SUBSEQUENT VOID MARRIAGES DUE TO

FAILURE OF PARTY TO GET PRIOR
3 cases where direct attack and not a
JUDICIAL DECLARATION OF NULLITY OF
collateral attack on nullity of marriage
PREVIOUS MARRIAGE PURSUANT TO
must first be undertaken so that
ARTICLE 40
proper effects provided by law can
 Art 43 (2) The absolute community of
appropriately apply
property or the conjugal partnership, as the
case may be, shall be dissolved and 1. Art. 40. The absolute nullity of a
liquidated, but if either spouse contracted previous marriage may be
said marriage in bad faith, his or her share invoked for purposes of
of the net profits of the community property remarriage on the basis solely of
or conjugal partnership property shall be a final judgment declaring such
forfeited in favor of the common children previous marriage void
or, if there are none, the children of the 2. (Ninal v. Bayadog)
guilty spouse by a previous marriage or in For other purposes such as but
default of children, the innocent spouse not limited to determination of
(this applies) heirship, legitimacy or
illegitimacy of child, settlement of
COLLATERAL AND DIRECT ATTACK estate, dissolution of property
regime, or criminal case for that
 As a general rule, void marriages can be
matter, court may pass upon the
collaterally attacked.
validity of marriage even in a suit
 Meaning nullity of marriage can be
not directly situated to question
asserted even if it is not the main or
the same so long as it is
principal issue of a case and that no
essential to the determination of
previous judicial declaration of nullity is
case.
required by law with respet to any other
[in art 40, “on basis solely of final
matter where issue of voidness of
judgment declaring such
marriage is pertinent or material, either
previous marriage void”
directly or indirectly.
connotes that such final
 It is not mandatory to show that prior to
judgment need not be obtained
death of decedent, either decedent or
only for purpose of remarriage]
mother filed a civil case precisely and
mainly for purpose of judicially declaring 3. Art. 50. 43(3), and 86 (1) of FC
marriage void. Evidence other than 43(3) Donations by reason of
judicial declaration declaring said marriage shall remain valid,
marriage void can be presented to show except that if the donee
the nullity of marriage (Domingo v. Court contracted the marriage in bad
faith, such donations made to
of Appeals)
 While case was one of support, lower said donee are revoked by
court can make a declaration that operation of law
marriage was void to determine rights of
Art. 86. A donation by reason of
child to be supported. SC rejected
contention that separate case for judicial marriage may be revoked by the
declaration of nullity must be filed first donor in the following cases:
(1) If the marriage is not
[35]
celebrated or judicially declared  Like putative marriage, good faith under Art
void ab initio except donations 35 (2) is not founded on actual marriage or
made in the marriage ceremonial marriage but on reasonable
settlements, which shall be belief by one or both contracting parties
governed by Article 81 that they were honestly married and
solemnizing officer had authority when in
BELOW 18 YEARS OF AGE (AYAY) fact, he had none.
 Consent of parents is immaterial in the  Good faith is always presumed until
sense that even if present it will not make contrary is shown (Kunafoff v, Woods)
marriage valid.  Scope of good faith in putative marriage
 Neither can subsequent parental consent may likewise be applied to good faith
ratify void marriage marriages under Art 35 (2)
SPANISH CODE Discriminatory Term good faith – honest and reasonable
MALE: 14 FEMALE:12 Unsafe pregnancy belief that marriage was valid at its inception
Minimum age to effectively and that no legal impediment exists to impair
procreate it validity.
1950 CIVIL CODE While it is frequently been said that a party
MALE: 16 FEMALE: 14 may be in good faith, so long as he receives
 Basis : primary obligation of no certain or authoritative knowledge of
husband or father to support some legal impediment to marriage, such
the family person CANNOT CLOSE his ears to
FAMILY CODE information or his eyes to suspicious
 BOTH 18YEARS OF AGE circumstances and must not act blindly or
without reasonable precaution.
Extent to which person has duty to ascertain
NO AUTHORITY OF SOLEMNIZING OFFICER
existence of impediment to his marriage
 PH exclusively recognize ceremonial
depends ultimately upon facts and
marriage which involves intervention of
circumstances in each individual case.
ecclesiastical or civil functionary
empowered by state to declare couple as
EXPLANATIONS OF JUSTICE RICARDO
husband and wife.
PUNO AND EDUARDO CAGUIOA: Aspect of
 Basta remember na lang ulit Art 7
good faith
 General rule is that there should be marriage
GOOD FAITH MARRIAGE
and therefore good faith of parties should
 If marriage were contracted with either or
come to their rescue.Sometimes it its ot
both parties believing in good faith that
therefault.
solemnizing officer had the legal authority
 Exception where marriage is not void is
to do so when in fact he/she has none,
where parties were made t believe, one or
then marriage is still considered valid.
both, that solemnizing officer has authority
 GOOD FAITH IS CLEARLY ADDRESSED
TO CONTRACTING PARTIES. No that of  This is to prevent unscrupulous chauvinistic
solemnizing officer and not to any other males from deceiving girls because they are
requisite whether essential or formal. made to believe that they are going to be
 W/O declaration by law of its validity, such married when marriages is not what they
good-faith marriage would have been an want. (basta si lalaki more ask sa fried to
instance of putative marriage which is void appear as if valid solemnizing officer siya
because absence of authority of a pero di naman pala tas mavovoid marriage
solemnizing officer. because of that)
 Putative marriage- applied to matrimonial  Court is not saying it is void. It is saying that
union which has been solemnized in due it is valid, not only as between parties but
form and good faith on some legal infirmity is everybody. It is as if it was solemnized by
either void or voidable. person with authority
[36]
Dr.Arturo Toentino : Ignorance of the law and may be invoked for purposes of remarriage on the
Ignorance of the fact. If parties go before a basis solely of a final judgment declaring such
person not specifically mentioned by law as previous marriage void.
having authority to solemnize marriage, then Art. 52. The judgment of annulment or of absolute
good faith or bad faith is immaterial because nullity of the marriage, the partition and distribution of
according to art 4 of CC, ignorance of the law the properties of the spouses and the delivery of the
children's presumptive legitimes shall be recorded in
excuses no one from compliance therewith.
the appropriate civil registry and registries of property;
otherwise, the same shall not affect third persons. (n)
NO MARRIAGEE LICENSE Art. 53. Either of the former spouses may marry again
 Marriage license is a formal requisite, after compliance with the requirements of the
absence of which makes marriage void. immediately preceding Article; otherwise, the
 Exceptions however: Art subsequent marriage shall be null and void
27,28,29,30,31,32,33,34 of FC
ARTICLE WHAT KIND JUDICIAL DECLARATION OF NULLITY
ARTICLE 27 at the point of death  Absolute nullity of previous marriage may
ARTICLE 28 located that there is no means of
be invoked for purposes of remarriage on
transportation to enable such party to
appear personally before the local civil basis solely of final judgment declaring
registrar such previous marriage void
ARTICLE 31 articulo mortis between passengers or
crew  RATIONALE: Parties to marriage should
ARTICLE 32 authority to solemnize marriages in not be permitted to judge for themselves its
articulo mortis between persons within nullity, only competent courts having such
the zone of military operation
ARTICLE 33 among Muslims or among members of authority (Landicho v. Relova-Landicho)
the ethnic cultural communities BIGAMY
(solemnized in accordance with their  One who enters subsequent marriage
customs, rites or practices.)
ARTICLE34 lived together as husband and wife for at without first obtaining such judicial
least five years and without any legal declaration is guilty of bigamy. Principle
impediment to marry each other
applies even if earlier unio is characterized
BIGAMOUS OR POLYGAMOUS MARRIAGE by statute as void (Manuel v. People)
 Except those allowed under Muslim Code Elements of Bigamy:
or under Art 41 of FC, law prohibits a 1. That the offender has been legally
married man or woman from contracting married;
another bond of union as long as the 2. That the first marriage has not been
consort is alive (US v. Ibanez)
legally dissolved or, in case his or her
 Subsequent marriage is illegal and void
from the beginning (Carratala v. Samson) spouse is absent, the absent spouse
 Subsequent marriage contracted in Hong could not yet be presumed dead
Kong by husband who had secured a void according to the Civil Code;
Nevada divorce is bigamous and void 3. That he contracts a second or
(Manila Surety & Fidelity Co., Inc v. subsequent marriage; and
Teodoro) 4. That the second or subsequent marriage
 IMPORTANT TO NOTE HOWEVER THAT
has all the essential requisites for
in bigamous marriage, 1st marriage must
have been valid. If 1st marriage is in itself validity.
void and subsequent marriage is EXCEPTION:
contracted w/o prior judicial declaration of 1.) Present spouse must file a Summary
nullity of 1st marriage, subsequent marriage proceeding for the declaration of
is void because it violates Art 40 in relation presumptive death of absentee w/o
to Art 52 and 53 of FC. prejudice to latter’s reappearance
Art. 40. The absolute nullity of a previous marriage
[37]
2.) Absence of other spouse must have undertake the liquidation, partition and
been for 4 consecutive years or 2 years distribution of their properties, if any and
where there is danger of death under only in proper cases, he delivery of
children’s presumptive legitimes and
circumstances laid down in Art 391 of
thereafter all these requirements including
NCC decree of annulment or nullity should be
3.) Well-founded belief of present spouse recorded in appropriate civil registry and
who wishes to remarry that absent registries of property
spouse is already dead
MISTAKE IN IDENTITY OKAY LET’S SUMMARIZE!!!!!!
 An instance of fraud which makes marriage
annullable. (CC) VOID MARRIAGES DUE TO ABSENCE OF
 Mistake in indentity is a ground for nullity of ANY OF THE ESSENTIAL OR FORMAL
marriage (FC) REQUISITES
Example: [B.B-L.A .PI.S]
Basta namarry mo yung twin. Due to complete
1.) Contracted by any party Below 18 years
absence of consent, marriage is void ab initio
 IMPORTANT : contracting party absolutely of age even with parental consent
did not intend to marry the other, as the 2.) Bigamous or polygamous marriage
same is not the person he/she actually except as provided in Art 41
knew before marriage. 3.) Solemnized without License except as
 This covers only situations in which there otherwise provided
has been a mistake on part of party
4.) Solemnized by any person not legally
seeking nullification of marriage as to
ACTUAL PHYSICAL IDENTITY OF THE Authorized to perform marriages unless
OTHER one or both parties believed in good faith
that solemnizing officer had the legal
DOES NOT COVER authority to do so
1.) Mistake in name (Ebak pala apilido niya) 5.) Marriages contracted through mistake of
2.) Character of person (Chaka pala siya one of the parties as to Physical Identity
after all this time)
of the Other
3.) His or her attributes (Jafake pala nose
niya) 6.) Subsequent marriages that are not void
4.) Age (Jutanders na pala siya) under Art 53 of FC
5.) Social Standing (Mahirap pala siya)
6.) Pedigree (dog food? Charot joke.)
7.) Pecuniary means Art. 36. A marriage contracted by any party
8.) Temperaments who, at the time of the celebration, was
9.) Acquirements psychologically incapacitated to comply with
10.) Conditions in life
the essential marital obligations of marriage,
11.) Previous habit
shall likewise be void even if such incapacity
VOID UNDER ARTICLE 53 becomes manifest only after its
 Art. 53. Either of the former spouses may solemnization.
marry again after compliance with the
requirements of the immediately preceding
Article; otherwise, the subsequent PSYCHOLOGICAL INCAPACITY
marriage shall be null and void.  Law does not define P.I, therefore
 For persons whose marriages has been
determination is left solely with courts on a
annulled or declared null and void to be
able to validly marry again, they must case to case basis.
[38]
 Determination of P.I “depends on the facts  J; Caguioa – “lack of appreciation of one’s
of the case. Each case must be judged not marital obligations” and that “psychological
on basis of a priori assumptions, incapacity does not refer to mental
predilections or generalizations but faculties in the sense that he/she or both
according to its own facts. (Republic v. should necessarily be shown to be insane.
Dagdag) (Aurelio v Aurelio) While incapacity it is not a pre-requisite for
 RATIONALE: “code should not have so existence of ground for nullity.
many definitions because definitions are  Psychological incapacity to perform the
straight-jackets the concept and therefore, essential marital obligations MUST BE
many cases that should go under it are PRESENT AT TIME OF MARRIAGE
excluded by the definition. That’s why we CEREMONY, BUT CAN MANIFEST
leave it up to the court to determine the LATER ON DURING MARRIAGE
meaning of psychological incapacity. (well, siguro kasi pag after na tas tiyaka lang
(Justice Caguioa) siya nagkasakit it goes against the “for better
 Clearly, ground is restricted to or for worse cliché” charot…)
psychological incapacity “to comply with  It is considered a ground to nullify
the essential marital obligations.” marriage.
 Must be as such as to seriously and  Such a marriage CANNOT BE CURED by
effectively prevent them from having a cohabitation considering that it is void and
functional and normal marital life clearly therefore, ratification cannot apply.
( Well when you think about “void” co-relate it with
conductive to bringing up a healthy
the love your ex promised you, besh wala nun una
personal inter-marital relationship within pa lang, kahit gaano ka pa niya pinagtiisan char!!!!)
the family which is necessary for its
growth. It must be a psychological illness WHY COHABITATION NOT A DEFENSE?
afflicting a party even before the  J; Puno stated that even the bearing of
celebration of the marriage. (Perez-Ferraris children and cohabitation should not be a
v. Ferraris) sign that psychological incapacity has been
 Hence, while person may be truly efficient cured
and mentally capable of undertaking a
particular profession in life, he/she can still [Santos v. CA]
be considered as completely irresponsible  1st case SC decided which discussed scope
person vis-à-vis his/her married life if and meaning of Art 36 (1995)
he/she spends almost the whole day  Denied nullity based on Art 36
working and not minding his/her family. DIGEST
(Tongol v. Tongol) Leouel Santos, a member of the Army, met Julia
Rosario Bedia in Iloilo City. In September 1986, they
 Despite this very authentic feeling of love, got married. The couple latter lived with Julia’s
he/she is so absolutely indifferent with parents. Julia gave birth to their son in 1987. Their
respect to his/her duties as a father and marriage, however, was marred by the frequent
husband/mother and wife as hee case may interference of Julia’s parents, as averred by Leouel.
The couple also occasionally quarreled about as to,
be. among other things, when should they start living
 Incapacity : limited to failure/disregard to independently from Julia’s parents. In 1988, Julia
comply with essential marital obligations. went to the US to work as a nurse despite Leouel’s
Not mere stubborn refusal but can be opposition. 7 months later, she and Leouel got to talk
and she promised to return home in 1989. She never
attributed to psychological causes. went home that year. In 1990, Leouel got the chance
to be in the US due to a military training. During his
[39]
stay, he desperately tried to locate his wife but to no carrying out the ordinary duties required in marriage;
avail. Leouel, in an effort to at least have his wife it must be rooted in the history of the party antedating
come home, filed a petition to nullify their marriage the marriage, although the overt manifestations may
due to Julia’s alleged psychological incapacity. Leouel emerge only after the marriage; and it must be
asserted that due to Julia’s failure to return home or incurable or, even if it were otherwise, the cure would
at least communicate with him even with all his effort be beyond the means of the party involved.
constitutes psychological incapacity. Julia filed an
opposition; she said that it is Leouel who is In the case at bar, although Leouel stands aggrieved,
incompetent. The prosecutor ascertained that there is his petition must be dismissed because the alleged PI
no collusion between the two. Leouel’s petition is of his wife is not clearly shown by the factual settings
however denied by the lower and appellate court. presented. The factual settings do not come close to
to the standard required to decree a nullity of
ISSUE: Whether or not psychological incapacity is marriage.
attendant to the case at bar.  Family Code did not define term
“psychological incapacity” Deliberations
HELD: No. Before deciding on the case, the SC noted during sessions of FC revision can however
that the Family Code did not define the term provide an insight on import of the provision
“psychological incapacity”, which is adopted from the
 J; Caguioa
Catholic Canon Law. But basing it on the
deliberations of the Family Code Revision Committee,
: idea is that one is not lacking in judgment
the provision in PI, adopted with less specificity than but he is lacking in the exercise of
expected, has been designed to allow some resiliency judgment. Lack of judgment would make
in its application. The FCRC did not give any marriage voidable.
examples of PI for fear that the giving of examples  Judge Sempio-Diy
would limit the applicability of the provision under the : Since insanity is also psychological or
principle of ejusdem generis. Rather, the FCRC would mental incapacity, why is insanity only a
like the judge to interpret the provision on a case-to- ground for annulment and not for
case basis, guided by experience, the findings of declaration of nullity?”
experts and researchers in psychological disciplines,  J; Caguioa
and by decisions of church tribunals which, although
: In insanity there is appearance of
not binding on the civil courts, may be given
persuasive effect since the provision was taken from
consent, which is the reason why it is a
Canon Law. The term “psychological incapacity” ground for voidable marriage, while
defies any precise definition since psychological psychological incapacity refers to the very
causes can be of an infinite variety. essence of marital obligation.
 J;Reyes
Article 36 of the Family Code cannot be taken and : “Why is insanity a ground for marriage,
construed independently of but must stand in while psychological incapacity is ground for
conjunction with, existing precepts in our law on void ab initio marriages?
marriage. PI should refer to no less than a mental (not  J; Caguioa
physical) incapacity that causes a party to be truly : Insanity is curable and there are lucid
incognitive of the basic marital covenants that
intervals, while psychological incapacity is
concomitantly must be assumed and discharged by
the parties to the marriage which (Art. 68), include
not.
their mutual obligations to live together, observe love, THERE ARE 2 INTERPRETATIONS OF
respect and fidelity and render help and support. The PHRASE “PSYCHOLOGICAL OR
intendment of the law has been to confine the MENTALLY INCAPACITATED”
meaning of PI to the most serious cases of 1st : Vitiation of consent because one
personality disorders clearly demonstrative of an utter does not know all consequences of the
insensitivity or inability to give meaning and marriage
significance to the marriage. This psychological 2nd: if he had known these completely
condition must exist at the time the marriage is he might not have consented to
celebrated. The SC also notes that PI must be marriage.
characterized by (a) gravity, (b) juridical antecedence,
 J; Caguioa
and (c) incurability. The incapacity must be grave or
serious such that the party would be incapable of
: Term incurable has a differect meaning in
law and in medicine. P.I is incurable
[40]
 J; Caguioa  There is clearly no doubt that intendment
: In divorce, P.I may occur after marriage, of law has been to confine P.I to most
in void marriages it has to be at time of serious cases of an utter insensitivity and
celebration of marriage, incapacity inability to give meaning and significance
continues and later becomes manifest
to marriage.
 J;Puno and Judge Diy
: It is possible that after marriage one’s Other forms of psychoses if existing at inception of
psychological incapacity becomes manifest marriage
1.) Unsound mind
but later on he is cured.
2.) Concealment of drug addiction
 J; Caguioa and J; Reyes 3.) Habitual Alcoholism
: remedy in this case is to allow him to 4.) Homosexuality or Lesbianism
remarry.  Merely render marriage voidable under Art 46 of
 J; Caguiao FC.
:mental and physical incapacities are vices
of consent while psychological incapacity is
not a species of vices of consent.
o Marriage is not just an adventure but
:FC Revision committee in ultimately deciding to also a lifetime commitment . We should
adopt the provision with less specificity than continue to be reminded that innate in
expected, has in fact so designated law as to our society, then enshrined in our civil
allow some resiliency in its application code and now still indelible in Art 1 of FC
Article 1. Marriage is a special contract of
permanent union between a man and a woman
 Part of the provision is similar to Canon 1095 of entered into in accordance with law for the
New Code of Canon Law establishment of conjugal and family life. It is the
: They are incapable of contracting foundation of the family and an inviolable
marriage social institution whose nature, consequences,
1. Lack sufficient use of reason and incidents are governed by law and not
2. Suffer from a grave defect of subject to stipulation, except that marriage
discretion of judgment concerning settlements may fix the property relations during
essential matrimonial rights and the marriage within the limits provided by this
duties to be given and accepted Code
mutually
3. Who for causes of psychotically in o Our constitution
nature are unable to assume Sec 1: The State recognizes the Filipino
essential obligations of marriage. family as the foundation of nation.
 Fr.Orsy, author: psychological causes can be of Accordingly, it shall strengthen its solidarity
infinite variety. and actively promote its total development
Sec 2: Marriage as an inviolable social
 Judge Sempio-Diy cites w/ approval the institution, is the foundation of the family and
work of Gerardo Veloso, former shall be protected by State.
Presiding Judge of Metropolitan Marriage
Tribunal of Catholic Archidocese of CONSTITUTIONAL CONSIDERATION
Manla who opines that P.I must be : Consti itself does not establish the
parameters of state protection to marriage
characterized by
as a social institution and the foundation of
1. GRAVITY
family
2. JURIDICAL ANTECEDENCE :it remains the province of legislature to
3. INCURABILITY define all legal aspects of marriage and
prescribe the strategy and modalities to
protect it based on whatever socio-political
[41]
influences it deems proper, and subject of comply with these : good indication of
course to the qualification that legislative psychological incapacity (Toring vs. Toring)
enactment itself adheres to the consti and  Fear of a wife who is afraid of children to
bill of rights. engage in sexual intercourse is an indicator of
 Indeed Art 36 of FC in classifying marriages P.I
contracted by psychologically incapacitated  Senseless and protracted refusal is equivalent
persons as a nullity should be demanded as an to P.I. Thus prolonged refusal of spouse to ave
implement of consti protection of marriage. sexual intercourse w/ his/her spouse is
 Corresponding interest for state to defend considered a sign of P.I (Chi Ming Tsoi v. CA)
against marriages ill-equipped to promote  Unreasonable attachment of spouse to fam,
family life. friends or barkada such that importance and
 Void ab initio marriage under Art 36 do not devotion which should be given to his/her own
further initiatives of state concerning marriage spouse and children are subordinated to said
and family, as they promote wedlock among attachment is also good indication of PI.
persons, who for reasons independent of their However separation and abandonment alone
will are not capacitated to understand or is note conclusive proof of P.I (Republic v.
comply with essential obligations of marriage. Quintero Hamano)
PROVING PYSCHOLOGICA INCAPACITY  Sexual infidelity alone or living adulterous life
 Psychosomatic and deals with state of mind does not automatically prove P.I.(Ligeralde v.
and thus can only be proven by indicators or Patalinghug)
external manifestations of the person claimed  Mere isolated idiosyncrasies of spouse are not
to be psychologically incapacitated. These themselves manifestations of P.I to perform
indicators must be clearly alleged in complaint essential marital obligations. Manifestations of
filed in court. P.I must be attributed to psychological illness
 Unlike other grounds for declaration of nullity and not mere physical illness. (Bier v. Bier)
and grounds for annulment and legal  P.I cannot be mere refusal or neglect to
separation which generally constitute clearly comply with obligations, it must be downright
definable physical acts and situations incapacity to perform (Republic v. Cabantug-
 Upon petitioner’s time and efforts so that she Baguio)
frequently complained of his lack of attention to  There must be proof of natal or supervening
her even to her mother whose intervention disabling factor that effectively incapacitated
caused petitioner to lose his job (Salita v. Hon. the respondent spouse from complying w/
Delilah Magtolis) basic marital obligations. (Suazo v. Suazo)
 See if husband or wife observes his/her duty  Mere incompatibility and irreconcilable
as such towards spouse, children and family. difference are not enough (Aspillaga v.
 Art 68: The husband and wife are obliged to Aspillaga)
live together, observe mutual love, respect and  Ground is very personal and limited one. It
fidelity, and render mutual help and support does not mean that because person is P.I to
 Procreation is likewise an essential obligation. perform marital obligations with his/her present
 Constant non-fulfillment of this obligation will spouse, this would also be the case with any
finally destroy the integrity or wholeness of other person other than his/her present spouse
marriage (Chi Ming Tsoi v. CA)  Medical and clinical rules to determine P.I were
< BRING UP KO LANG TITLE III formulated on basis of studies of human
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND behavior in general. Hence norms used for
AND WIFE : FC> determining P.I should apply to any person
 Art 220,221, 225 of Code enumerates rights, regardless of nationality. (Republic v.
duties and liabilities of parents relative to their Hamano)
parental authority over their children. Failure to  [granted nullity] Shown that petitioner was
suffering from dependent personality disorder
[42]
and respondent was also suffering from 1. Anti-social personality with its funfamental
narcissistic and anti-social disorder, both lack of loyalty to persons or sense of moral
consistent w/ p.i to perform essential martial values
obligations. (Te v. Te) 2. Hyperesthesia where individual has no
 By the very nature of Art 36, courts, despite freedom of sexual choice
having primary task and burden of decision 3. Inadequate personality where persona
making must not discount but, instead must responses consistently fall short of
consider as decisive evidence the expert reasonable expectation
opinion on the P.I and mental temperaments of  Verily, evidence must show a link, medical or
parties. the like between acts that manifest
 J;Romero psychological incapacity and the psychological
Professional opinion of psychological expert disorder itself
became increasingly important in such cases.  Court mentions nevertheless for emphasis tat
Data about person’s entire life, both before and presentation of expert prof presupposes a
after ceremony were presented to these thorough and an ind-depth assessment of
experts and they were asked to give parties by the psychologist or expert for a
professional opinions about a party’s mental conclusive diagnosis of grave, severe and
capacity at time of wedding. These opinions incurable P.I
were rarely challenged and tended to be
accepted as decisive evidence of lack of valid CAUSES OF PERSONALITY DISORDERS
consent FREUDIAN Fixation at certain stages
 As meaning the capacity of spouses to give of development led to
themselves to each other and to accept the certain personality types
GENETIC FACTORS There is genetic factor
other as distinct person; that the spouses must
involved in etiology or
be other oriented since the obligations of anti-social or borderline
marriage are rooted in a self-giving love; and personality disorders, less
that spouses must have capacity for evidence of inheritance of
interpersonal relationship because marriage is other personality
more than just a physical reality but involves disorders
true intertwining of personalities. The fulfillment NEUROBIOLOGIC Borderline personality,
low cerebrospinal fluid,
of obligation of marriage depends according to
negatively correlated with
church decisions on strength of interpersonal measures of aggression.
relationship BRAIN WAVE Abnormalities in
ACTIVITY electroencephalograph.
 Fr.Green in an article in Catholic Mind lists 6
elements necessary to mature marital (Add up to this pag may time)
relationship
EXPERT TESTIMONY
1. Permanent and faithful commitment  Extremely helpful
2. Openness to children and partner  SC : the personal medical or psychological
3. Stability examination of respondent is not a requirement
4. Emotional Maturity for declaration of P.I and that it is not a
5. Financial responsibility condition sine qua non for such declaration”
6. Ability to cope with ordinary stress and (not an essential condition) (Republic v. Tayag
strains of marriage San Jose)
 Fr.Green: among the psychic factors possibly  However court may or may not accept
giving rise to his/her ability to fulfill marital testimony of psychologist or psychiatrist
obligations are the following because decision must be based on totality of
evidence (Paras v. Paras)
[43]
 Nevertheless, testimony of an expert witness, illness itself must have attached at such
like psychiatrist or psychologist if credible and moment or prior thereto.
if consistent with totality of evidence which is 4.) Such incapacity must also be shown to be
also credible might be given weight. medically or clinically permanent or
 SC even adered to medical and clinical incurable. Such incurability may be absolute
findings of psychia or psycholo who did not or even relative only in regard to the other
personally examine the subject but who were spouse and not necessarily absolutely agaist
given reliable data about the respondent and every one of the same sex. Such incapacity
read pertinent court records in coming up with must be relevant to the assumption of
more reliable assessment that respondent was marriage obligations not necessarily to those
not suffering from PI. Mere fact therefore that not related to marriage.
psychiatrist personally examined subject 5.) Such illness must be grave enough to bring
person is not an assurance that his/her about the disability of the party to assume
findings would be sustained. (Antonio v. the essential obligations of marriage. The
Reyes) illness must be shown as downright
 Psychiatrist of petitioner however merely incapacity or inability, not a refusal, neglect
evaluated the respondent by analyzing his or difficulty, much less ill will.
disposition (Ting v. Ting) 6.) The essential marital obligations must be
 SC denied nullity of marriage on ground that those embraced by Art 68 up to 71 of FC
psychological report was very general and did as regards husband and wife as well as
not state specific linkages between personality Art 220,221, and 225 of same code with
disorder and behavioral pattern of spouse regard to parents and their children
during marriage (Rumbaua v. Rubaua) 7.) Interpretations given by National Appellate
Matrimonial Tribunal of the Catholic Church
JURISPRUDENTIAL GUIDELINES of PH while not controlling should be given
SC enumerated guidelines in invoking and proving P.I great respect by our courts.
under Art 36 “the following are incapable of contracting
1.) Burden of proof to show the nullity of marriage: those who are unable to assume
marriage belongs to plaintiff. Any doubt essential obligations of marriage due to
should be resolved in favor of existence and causes of psychological in nature”
continuation of marriage and against its 8.) Trial court must order the prosecuting
dissolution and nullity attorney or fiscal and the Solicitor General to
2.) Root cause of psychological incapacity must appear as counsel for the state.
be  Certification of SG is not anymore needed.
a. Medically identified
b. Alleged in the complaint  Court is not demolishing the foundation of
c. Sufficiently proven by experts families, but actually protecting the sanctity
d. Clearly explained in the decision. of marriage because it refuses to allow a
Psycological- not physical, although its person afflicted with psychological disorder,
manifestations and or symptoms may be who cannot comply with or assume the
physical . essential marital obligations from remaining
To such an extent that person could not in that sacred bond.
have known the obligations he was DAMAGES
assuming or knowing them, could not have  Disallowed award of moral, & exemplary
given valid assumption thereof. damages and attorneys fees
3.) Incapacity must be proven to be existing at  On ground that the very nature of P.I which is
the time of celebration of marriage. It need non-cognizance of one’s essential marital
not be perceivable at such time, but the obligation at time of marriage ceremony,
negates bad faith.
[44]
 No award of exemplary damages and Art. 221. Parents and other persons exercising
attorney’s fees can also be made in absence of parental authority shall be civilly liable for the injuries
showing of bad faith. and damages caused by the acts or omissions of their
unemancipated children living in their company and
ESSENTIAL MARITAL OBLIGATIONS
under their parental authority subject to the
AS REGARDS HUSBAND AND WIFE appropriate defenses provided by law.
Art. 68. The husband and wife are obliged to live Art. 225. The father and the mother shall jointly
together, observe mutual love, respect and fidelity, exercise legal guardianship over the property of the
and render mutual help and support. unemancipated common child without the necessity
Art. 69. The husband and wife shall fix the family of a court appointment. In case of disagreement, the
domicile. In case of disagreement, the court shall father's decision shall prevail, unless there is a judicial
decide. order to the contrary.
The court may exempt one spouse from living with Where the market value of the property or the annual
the other if the latter should live abroad or there are income of the child exceeds P50,000, the parent
other valid and compelling reasons for the exemption. concerned shall be required to furnish a bond in such
However, such exemption shall not apply if the same amount as the court may determine, but not less than
is not compatible with the solidarity of the family. ten per centum (10%) of the value of the property or
Art. 70. The spouses are jointly responsible for the annual income, to guarantee the performance of the
support of the family. The expenses for such support obligations prescribed for general guardians.
and other conjugal obligations shall be paid from the A verified petition for approval of the bond shall be
community property and, in the absence thereof, from filed in the proper court of the place where the child
the income or fruits of their separate properties. In resides, or, if the child resides in a foreign country, in
case of insufficiency or absence of said income or the proper court of the place where the property or
fruits, such obligations shall be satisfied from the any part thereof is situated.
separate properties. The petition shall be docketed as a summary special
Art. 71. The management of the household shall be proceeding in which all incidents and issues regarding
the right and the duty of both spouses. The expenses the performance of the obligations referred to in the
for such management shall be paid in accordance second paragraph of this Article shall be heard and
with the provisions of Article 70. resolved.
AS REGARD TO PARENTS AND CHILDREN The ordinary rules on guardianship shall be merely
Art. 220. The parents and those exercising parental suppletory except when the child is under substitute
authority shall have with the respect to their parental authority, or the guardian is a stranger, or a
unemancipated children on wards the following rights parent has remarried, in which case the ordinary rules
and duties: on guardianship shall apply.
(1) To keep them in their company, to support,
educate and instruct them by right precept and good
example, and to provide for their upbringing in
RECAP!!!
keeping with their means;
(2) To give them love and affection, advice and REQUISITEES OF PSYCHOLOGICAL
counsel, companionship and understanding; INCAPACITY
(3) To provide them with moral and spiritual guidance, 1.) Juridical Antecedence
inculcate in them honesty, integrity, self-discipline,  Must be rooted in the history of party attending
self-reliance, industry and thrift, stimulate their the marriage although manifestations may
interest in civic affairs, and inspire in them compliance emerge only after the marriage
with the duties of citizenship; 2.) Incurability
(4) To furnish them with good and wholesome  Must be incurable or even if curable, the cure
educational materials, supervise their activities, would be beyond the means of party involved
recreation and association with others, protect them 3.) Gravity
from bad company, and prevent them from acquiring  Must be grave/serious such that the party would
habits detrimental to their health, studies and morals; be incapable of carrying out the ordinary duties
(5) To represent them in all matters affecting their required of marriage.
interests;
(6) To demand from them respect and obedience;
(7) To impose discipline on them as may be required
under the circumstances; and
(8) To perform such other duties as are imposed by
law upon parents and guardians.
[45]
 In addition, science and experience have
established beyond cavil that such
Art. 37. Marriages between the intermarriages very often result in
following are incestuous and void deficient of degenerate offspring which, if
from the beginning, whether occurring to any great extent, would
relationship between the parties be amount to a serious deterioration of race
(Gould v. Gould)
legitimate or illegitimate:
 Another reason deals with the social and
(1) Between ascendants and
psychological aspects of an incestuous
descendants of any degree; and marriage
(2) Between brothers and sisters,  Social prohibitions against incest
whether of the full or half blood. promote solidarity of nuclear family.
 Incest prohibition regulates erotic desire
REASN FOR PROHIBITION OF INCESTOUS in two ways that contribute to
MARRIAGE preservation of the nuclear family.
 Universally condemned as grossly 1. Prohibition controls sex rivalries and
indecent, immoral and inimical to the jealousies within family unit.
purity and happiness of the family and 2. By ensuring suitable role models, the
the welfare of future generations. incest restriction prepares the
 They are abhorrent to nature, not only of individual for assumption of familial
civilized men, but of barbarous and semi- responsibility as an adult. Eventually
civilized peoples it propels individual toward creation
 Tend to the confusion of rights and of new nuclear family of his own
duties, incident to family relations (Gould marriage.
v. Gould)
[child of incestuous union creates a Art. 38. The following marriages
special problem of social placement, shall be void from the beginning
because its status is so confused, as of
for reasons of public policy:
its parents]
Draw the confusing table
(Child born between union of daughter and (1) Between collateral blood
father)
(Father married to grandmother) relatives whether legitimate or
illegitimate, up to the fourth
civil degree;
(2) Between step-parents and step-
children;
(3) Between parents-in-law and
children-in-law;
(4) Between the adopting parent and
the adopted child;
(5) Between the surviving spouse of
the adopting parent and the adopted
child;
[46]
(6) Between the surviving spouse of  Principal and agent can validly marry each
the adopted child and the adopter; other.
(7) Between an adopted child and a
COLLATERAL BLOOD RELATIVES BY
legitimate child of the adopter;
CONSANGUINITY
(8) Between adopted children of the  May likely result though not in the same
same adopter; and gravity in dangers and confusion attendant
(9) Between parties where one, with in incestuous marriage under Art 37.
the intention to marry the other,  Prevent coming together in their offspring
of any deleterious recessive genes.
DRAW HERE UNDERSTANDING
(create family tree)  Role of legislation has been to decide that
1.) Determine who is a relative by direct ascending line risk is too much to allow citizens and then
2.) Relative 4th civil degree
3.) Relative 5th civil degree
to enact law accordingly
4.) Relative of 2nd civil degree  Pertinently, relationship by consanguinity is
in itself not capable of dissolution. Even if
grandfather died, does not sever blood
relationship of first cousins.
 To determine whether two persons are
relatives of each other up to forth civil
degree, they have to consider their nearest
and immediate common ascendant and
then count the number of relatives from
one of them to the common ascendant and
from the common ascendant to other one.
COLLATERAL HALF BLOOD RELATIVES BY

CONSANGUINITY
 Under FC, the prohibitition extends to
killed that other person's spouse, collateral blood relatives up to the 4th civil
degree which include one’s uncle, aunt,
or his or her own spouse.
niece, nephew and first cousin.
 No question that prohibition applies to full-
REASONS FOR PROHIBITION OF VOID
blood relationships.
MARRIAGE
 Against Public Policy  HOWEVER it is interesting to point out that
 Policy of state to foster a normal, peaceful law does not provide that marriage
and wholesome integral nuclear family unit between collateral blood relatives by half-
which would constitute as the very blood are prohibited.
foundation of the society/
 Marriages described in Art 38 will not serve ILLUSTRATE UNDERSTANDING HERE.
the fundamental objective of nurturing a
stable family unit that can effectively be the
foundation of society
 Enumeration in art 38 – EXCLUSIVE
 Guardian and his ward can marry
[47]
with a more remote relationship than
brother and sister, suggests that it did
not intend to put this limited class
[American Cases which advance 2 different within the interdiction.
views as to whether such marriages are void.] All doubts must be construed in favor
Audley v. Audley Issue: of marriage. Only those prohibited by
Whether the provision in marital law as void shall be treated as such.
statute prohibiting marriages between
uncles and nieces or aunts or RELATIONSHIP BY AFFINITY
nephews also include half-blood
 Step-parents and step-children as well as
relationships
Held: parents-in0law and children-in-law are
Claim:. Marriage is incestuous and related by affinity.
void between uncle and niece or an
aunt or nephew, whether they are  Doctrine of affinity grew out of canonical
legitimate or illegitimate. maxim that a marriage makes husband
Prior to 1893, incestuous and void and wife one. Husband has the relation, by
marriages were limited to marriages
between ancestor and descendant affinity to his wife’s blood relatives as she
and a brother and a sister if either has to them consuanguinity, vice versa
whole blood or half blood (State v. Hooper)
And marriages between uncles and
nieces and aunts and nephews have  Affinity is the connection formed by
only been prohibited in this state since marriage which places the husband in the
enactment of chapter 601 of laws of
1893 (Weisberg vs. Weisberg) same degree of nominal propinquity to the
Held: relatives of wife as that in which she
Probable that legislature recognized herself stands towards them and give wife
this and addressed prohibition against
marriages in subdivision 3, not on the same reciprocal connection with
percentage of blood relationship but to relations of husband. (Kelly v. Neely)
the relationship generally known and
 Only marriages by affinity prohibited in FC
understood and on the theory that it
has prohibited marriages between are marriages between step-parents and
uncle and niece and aunt and nephew step-children as well as parents-in law and
without regard to percentage of their
blood relationship children-in-law.
The prohibition was enacted for  It is believed that these kinds of marital
benefit of public health and relationships, IF ALLOWED can most likely
perpetuation of human race. Since the
closest relationship of an uncle and destroy the peacefulness of family relations
niece under a lawful marriage of those and also cause disturbance within family
so related are plainly prohibited. I
think it would have been unreasonable
circle.
to impute to the legislature the belief  PH society is characterized as practicing
that the evils which it was anticipated “extended families” which have been
would flow from such marriages,
would not befall the issue of a proven most advantageous and beneficial
marriage between uncle of half blood to society itself.
and niece of quarter blood of common  Step-brother or step-sister can, however
ancestor. (McCullen vs. McCullen
In Re Simms New York CA stated that a marriage marry each other as this relationship by
Estate between uncle and niece by the half affinity is not included in the prohibition.
blood is not incestuous and void.
“Reasonable to think that if the
legislature intended to prohibit EFFECT OF TERMINATION OF MARRIAGE ON
marriages between uncles, nieces, THE AFFINITY PROHIBITION
aunts, nephews whose parents were  In event that marriage is annulled or
related to the contracting party only by
the half blood, it would have used nullified in accordance with law, there can
similar language and its failure to do be no question that relationship by affinity
so, in immediate context in dealing
[48]
between step-parents and step children as
well as parents-in law and children in law is ADOPTIVE RELATIONSHIP
terminated.  Relationship created in adoption is merely
 They become strangers to each other limited to one of parent and child. The void
 This will allow them therefore to marry marriages in an adoptive relationship are
each other legally. specifically and expressly limited by law to
 But, as it appears in the case before us, those mentioned in
there was no issue of former marriage Art 37 Between the adopting parent and
between descendant and plaintiff’s mother, (4) the adopted child
the question need now determined. He Art 37 Between the surviving spouse of
(5) the adopting parent and the
court concludes: relationship of affinity
adopted child
between decedent and plaintiff which Art 37 Between the surviving spouse of
existed during continuance of marriage (6) the adopted child and the adopter
relation between decedent and plaintiff’s Art 37 Between an adopted child and a
mother terminated when latter procured a (7) legitimate child of the adopter
divorce from decedent and after that time, Art 37 Between adopted children of the
plaintiff was not the daughter of (8) same adopter
decentent’s wife, the marriage between **** THIS IS ART 38 CORRECTION IN
them is valid. (Back vs. Back) BOOK**
 In Civil Law, in a case a marriage is  One parent and child, an adopted can validly
terminated by death of one of spouse, marry the following
there are conflicting views. 1.) Parents
Affinity not terminated If spouses have no 2.) Illegitimate child
whether there are living issues or 3.) Other relatives
children or not in the children and one of  There is no prohibition against marriages
marriages (Carman v. spouses dies, between an adopted and illegitimate children
Newell) relationship by affinity
is dissolved. It follows of adopter as such marriage will not most
The relationship by the rle that likely destroy the tranquility of family home
affinity is continued relationship by affinity and “artificial” family because usually, an
despite the death of ceases with the illegitimate child does not live in same house
one of the spouses dissolution of
where there are living marriage which where adopted child and legitimate child of
issues or children of produces it. (Kelly v. adopter are living (Minutes of 151st joint Civil
the marriage in whose Neely) Code and Family Law Committees)
veins the blood of  On the other hand, the adopter can validly
parties are
comminggled, since marry
relationship of affinity 1.) Legitimate, Illegitimate or adopted
was continued child of the adopted
through the medium of
2.) Natural parent of the adopted
issue of marriage
(Paddock v. Wells) 3.) Other relatives whether by
consanguinity or affinity of the
adopted
 In Criminal Law, affinity relation subsists  Hence, if marriage of adopter and his or her
even after the death of spouse regardless of spouse is judicially nullified or annulled, and
existence or non-existence of children barring any other ground to make the
(Intestate Estate of Monalita Gonzales Vda marriage void, adopted can validly marry the
De Carungcong)
[49]
previous spouse of adopter because such effectivity of this Code and
spouse is not a surviving spouse as falling under Article 36, such
contemplated by law but a former spouse action or defense shall prescribe
who, after the finality of the nullity or
in ten years after this Code shall
annulment decree, has become a complete
taken effect"has been deleted by
stranger to the adopter.
 Likewise and under the same condition, the Republic Act No. 8533 [Approved
adopter can marry the spouse of adopted if February 23, 1998]
marriage of adopted and his/her spouse
were severed by a final judicial nullity or PRESCRIPTIVE PERIOD
annulment decree. Time within which to file an action for
declaration of nullity of marriage or to invoke
INTENTIONAL KILLING OF SPOUSE such nullity as a defense, whether direct or
 Involves grave moral turpitude, destructive collateral manner DOES NOT PRESCRIBE.
not only on family but the whole society itself. Judicial decree of nullity of marriage does not
 There is no guarantee that he/she will not do legally dissolve marriage because such
the same evil act again to subsequent marriage is invalid from the beginning and
spouse to marry for the third time. therefore being non-existent, cannot be
 However it must be emphasized that, in dissolved.
killing spouse, guilty party must be animated J.D merely declares or confirms the voidness
by an intention to marry another person. , non-existence or incipient invalidity of
 Thus, if a wife kills her husband because he marriage. Hence decree is known as
was an incorringible philanderer and declaration of judicial declaration of nullity of
thereafter marries her lawyer who has been marriage decree.
defending her in criminal case, the marriage (Ninal v. Bayadog) Supreme Court justified its
is VALID. Reason for killing husband was decision by stating that void marriage is
obviously not for purpose of marrying the considered as having never to have taken place
and will be treated as non-existent by courts. As
lawyer.
such, petition is imprescriptible and can be filed
 NO PRIOR CRIMINAL CONVICTION by
by children after death of contracting party, who
court for killing is required by law. Justice was their father.
Caguioa even said that mere preponderance However under SC En Banc resolution of A.M
of evidence is required to prove killing. No. 02-11-10 which took effect on March
 Unknowing party, affected by void character 15,2003, the ruling in Ninal case as to
of marriage. prescription does not hold anymore because said
 Likewise apply to a person who kills the resolution provides that only husband and wife
spouse to marry the latter. can fiile a case and if filed, case will be closed or
terminated if during its pendency, either husband
or wife should die. Moreover, under said new rule
Art. 39. The action or defense for
on declaration of nullity, the heirs cannot
the declaration of absolute nullity anymore file a case for the nullity of marriage of
of a marriage shall not prescribe. their parents or their parent with their step-parent
(As amended by Executive Order 227 (Enrico v. Heirs of Medinaceli)
Under E.O 227, if Dec of Nullity is that spouse is
and Republic Act No. 8533; The
Psychologically incapacitated to perform
phrase "However, in case of essential marital obligations and marriage
marriage celebrated before the ceremony was celebrated prior to the effectivity
[50]
of FC, which was on Aug 3,1988, such action or law, wilfully or negligently
defense must be filed or invoked within 10 years causes damage to another, shall
from Aug 3,1988. However if marriage was indemnify the latter for the
celebrated after the effectivity of FC, action or same.
Art 21 Any person who wilfully causes
defense shall not prescribe.
loss or injury to another in a
manner that is contrary to
RA 8533 further amended Art 39 by morals, good customs or public
deleting prescriptive period of 10 years. policy shall compensate the
latter for the damage.
Hence as it now stands, THERE IS NO
 Significantly, prior to SC resolution in A.M
PRESRIPTIVE PERIOD TO NLLIFY A
No. 02-11-10 SC which took effect on March
MARRIAGE UNDER ART 36, even if
15,2003, any interested party, uch as the
marriage were celebrated before Aug
father and step-children can file a direct case
3,1988. ALL VOID MARRIAGES UNDER FC
for nullity of marriage. However, under new
DO NOT PRESCRIBE.
rules on declaration of nullity, heirs cannot
PARTIES
anymore file a case for nullity of marriage of
 While FC is silent as to who can file a petition
the parents or of their parent with their step-
to declare the nullity of marriage (Ninal
parent. (Enrico v. Heirs of Medinaceli)
v.Bayadog) only husband or wife can file
 Thus previously, a father can file aa case for
cour case declaring marriage void.
declaration of bigamous marriage entered
 Significantly, it has been authoritatively
into by his daughter to married man
opined that equitable doctrine of unclean
(Conjuanco v. Romillo)
hands where court should not grant relief to
 Likewise, leigitimate heris can file a suit
wrongdoer is not a rue as applied in nullity
against their stepmother for the declaration
actions because it is merely judge-made and
of nullity of her marriage with their deceased
has no statutory basis (Faustin v. Lewis)
father to protect their successional rights.
 Any of the parties in void marriage can nullify
 Now, under new rules, parents cannot file a
case even though such party is the
case for nullity in relation to the marriage of
wrongdoer (Chiming Choi v. CA)
their children. Neither can heir file a case in
 Moreover, what is sought to be protected
relation to marriage of his/her parent with
here is also the interest and public policy of
another. (Enrico v. Heirs of Medinaceli)
state. In declaring a marriage void, the state
 SC ruled that only spouses in subsisting first
expresses that it does not consider such
marriage can file a case for declaration of
union as serving the fundamenta prupose of
nullity of subsequent bigamous marriage.
state in fostering and nurturing a family which
The “other spouse” in subsequent marriage
is foundation of society.
cannot file the case considering that his/her
 Nonetheless, wrongdoer may be held liable
marriage is void (Fujiki v. Marinay)
for damage by way of counterclaim by the
 Where 2nd wife filed a petition for intervention
other under provisions of Human relations in
in the declaration of nullity of marriage case
Civil Code.
filed by her husband in relation the latter’s
Human Relations- Liab.
Art 19 Every person must, in the first marriage, SC denied such intervention
exercise of his rights and in the on the ground that 2nd wife has no legal
performance of his duties, act interest to justify her intervention. SC said
with justice, give everyone his that since divorce obtained by her husband
due, and observe honesty and
good faith. in Dominican Republic from 1st wife to be
Art 20 Every person who, contrary to able to marry 2nd wife was not recorgnized in
[51]
PH, PH law does not recognize 2nd marriage annulment decree prior to subsequent
of her husband to her. (Perez v. CA) marriage . [so it applies: void and
 However void marriage can still be voidable marriages]
collaterally attacked by any interested party o RATIONALE:
in any proceeding where the determination of For the sake of good order of society and
the validity of marriage is necessary to give for peace of mind of all persons
rise to certain rights or negate certain rights. concerned, it is generally expedient that
This can occur in an intestate proceeding. nullity of marriage should be asccertaied
and declared by decree of court of
Art. 40. The absolute nullity of a previous competent jurisdiction. Another reason
marriage may be invoked for purposes of why a judicial determination of such a
remarriage on the basis solely of a final marriage ought to be sanctioned is that
judgment declaring such previous the opportunity given, when evidence
marriage void. obtainable, and the parties living t ave
proof of validity of such marriage
JUDICIAL DECLARATION OF NULLITY presented in form of judicial record, so
o If marriage between two contracting that it cannot be disputed or denied.
parties is void ab initio, any one of them
cannot contract a subsequent valid Art. 40. The absolute nullity of a previous
marriage without previous judicial marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment
declaration of nullity of previous void
declaring such previous marriage void.
marriage. Art. 52. The judgment of annulment or of
o Subsequent marriage w/o such JDN of absolute nullity of the marriage, the partition and
previous marriage is in itself void ab initio distribution of the properties of the spouses and
in accordance with Articles 40,52,53. the delivery of the children's presumptive
legitimes shall be recorded in the appropriate civil
o Insofar as Art 40 is concerned, if JDN registry and registries of property; otherwise, the
were obtained and not registered with same shall not affect third persons.
local civil registrar and the liquidation, Art. 53. Either of the former spouses may marry
partition and distribution of properties, if again after compliance with the requirements of
the immediately preceding Article; otherwise, the
any, were also not recorded in proper subsequent marriage shall be null and void
registry of property, in accordance with
Art 52 and Art 53 of FC, any subsequent
marriage is likewise void ab initio. HISTORY BACKGROUND OF NEED FOR
o Only after full compliance with Art 52 and JUDICIAL DECLARATION OF NULLITY
52 can a subsequent valid marriage be  Prior to effectivity of FC, rule on need for
entered into. judicial declaration of nullity of void marriage
o Hence, though first marriage is judicially for purposes of remarriage changed from
declared void, any subsequent marriage time to time.
may still be declared void because of the  As consonance to these changing rules,
failure to comply with Art 52 & Art 53. status of subsequent marriage depends upon
o Also, if there is no judicial declaration of time of solemnization of said marriage.
nullity and no decree of annulment, there  Example of situation
can be no way by which the party can 1960 w/o need
comply with Art 52 in matter of 1972 required
registration with LC of nullity or 1978 w/o need
[52]
1985 w/o need the Philippines; while the second marriage took
1986 required place in 1991 and governed by the Family Code.
 Jarillo v. People, June 29,2010, Supreme
court made a sweeping statement on Art 40 ISSUE:
can be given retroactive effect and ruled that, WON Article 40 of the Family Code is applicable
to the case at bar.
even if the two marriages were solemnized
prior to Aug 3,1988, the subsequent HELD:
marriage will always be void. Yes. Article 40 is applicable to remarriages
 As basis SC used Atienza v. Brillantes, supra entered into after the effectivity of the Family
as basis. This is unfortunate because the Code on August 3, 1988 regardless of the date of
subsequent marriage in Atienza case the first marriage. Besides, under Article 256 of
occurred after Augsust 3,1988 when FC the Family Code, said Article is given “retroactive
effect insofar as it does not prejudice or impair
already in effect. vested or acquired rights in accordance with the
 In Atienza ccase, SC was clearly stating that Civil Code or other laws.” This is particularly true
even if 1st marriage was celebrated before with Article 40, which is a rule of procedure.
effectivity of FC, but subsequent marriage Respondent has not shown any vested right that
occurred after said FC, Art 40 will apply was impaired by the application of Article 40 to
retroactively in so far as making 1st marriage his case.
the reckoning point.
 In case of Domingo v. CA. SC had the
 Atienza case does not deal with two
occasion to discuss the reason fro need to
marriage occurring prior to Aug 3,1988.
obtain a judicial declaration of nullity for the
Atienza v. Brillantes digest
FACTS: purpose of remarriage and proper
interpretation of Art 40 of FC. After tracing
This is a complaint by Lupo A. Atienza for Gross the changing doctrines in relation to need of
Immorality and Appearance of Impropriety obtaining a judicial declaration of nullity SC
against Judge Francisco Brillantes, Jr. stated that declaration of absolute nullity of
Complainant alleged that he has two children marriage iis now explicitly required either as
with Yolanda De Castro with whom respondent
Judge was cohabiting with. Complainant claimed cause of action or a ground fro defense.
that respondent is married to one Zenaida Where absolute nullity of previous marrage is
Ongkiko with whom he has 5 children. sought to be invoked for purposes of
Respondent alleges that while he and Ongkiko contracting a second marriage , the sole
went through a marriage ceremony (1965) before basis acceptable in law for said projected
a Nueva Ecija town Mayor, the same was not a marriage to be free from legal infirmity is final
valid marriage for lack of a marriage license.
judgment declaring the previous marriage
Upon request of the parents of Ongkiko,
respondent went through another marriage void. Family Law Revision Committee and
ceremony with her in Manila. Again, neither party Civil Code Revision Committee which drafted
applied for a marriage license. Respondent SC took position that parties to marriage
claims that when he married De Castro in civil should not be allowed to assume that their
rites in Los Angeles, California in 1991, he marriage is void even if such be the fact but
believed in all good faith and for all legal intents must first secure a judicial declaration of
and purposes that he was single because his first
nullity of their marriage before they can be
marriage was solemnized without a license.
Respondent also argues that the provision of allowed to marry again.
Article 40 of the Family Code does not apply to
him considering that his first marriage took place Art 40 as finally formulated included the
in 1965 and was governed by the Civil Code of significant clause denotes that such final
[53]
judgment declaring the previous marriage void o Aim of Article 40 in requiring for purposes of
need not be obtained only for the purposes of remarriage a judicial declaration of nullity by
remarriage. Undoubtedly, one can conceive of final judgment of previously contracted void
other instances where a party might well invoke marriage is “to do away with any continuing
the absolute nullity of previous marriage for
uncertainty on status of 2nd marriage (Valdes
purpose other than remarriage such as in the
case of an action for liquidation, partition, v. RTC) 2nd marriage shall likewise be void.
distribution or separation of property between o In (De Castro v. Assidao-De Castro) SC
erstwhile spouses, as well as an action for ruled that in case for support, a lower court
custody and support of their children and delivery can declare marriage void even without prior
of latter’s presumptive legitimes. judicial declaration of nullity of void marriage
filed in a separate action considering that
So why the distinction? In other words, for
purposes of remarriage, why should the only determination of the issue on validity of
legally acceptable basis for declaring a previous marriage was important in the resolution of
marriage an absolute nullity be a final judgment the right of child to be supported. This is so
declaring such previous marriage void? Whereas because the validity of marriage, as a
for purposes other than remarriage, other general rule can be collaterally attacked. It
evidence is acceptable reiterated however the ruling in Domingo
case, supra that for purposes of remarriage,
 FC characterizes marriage as a “special
contract of permanent union between a man the only acceptable proof is a judicial
and a woman entered into in accordance declaration of nullity of marriage.
with law for the establishment of conjugal
and family life” ARTICLE 40 AND BIGAMY
 So crucial are marriage and family to the  Law distinctly separated the provisions of
stability and peace of thee nation and that subsequent void marriages contracted
their nature, consequences, and incidents
while previous marriage is still subsisting
are governed by law and not subject to
stipulation (Art 40)
 As a matter of policy therefore, nullification of  From provisions on void bigamous
marriage for purpose of contracting another marriage (Art 35 (4) and Art 41
cannot be accomplished merely on basis of  All these provisions contemplate a
perception of both parties or of one that their situation where subsequent marriage is
union is so defective with respect to the void but they differ on status of first
essential requisites of contract of marriage
marriage.
as to render it void ipso jure and with no legal
effect and nothing more. ART 40 ART 35 (4) & 41
 That law seeks to ensure that prior marriage o Void not because it o Subsequent void
is no impediment to a second marriage to be is bigamous but bigamous marriage
because it failed to contemplates a
contracted by one of the parties may be
comply with the situation where such
gleaned from new information required in the requirements under subsequent
FC to be included in application for a Art 40, 52 and 53. marriage was
marriage license. “If previously marriage, o Thus if contracting contracted at time
how when and where the previous marriage parties marry without a when the first
was dissolved and annulled. marriage license and marriage, which is
they do not fall under valid in all respects,
o Significantly, Art 40 of FC which is a rule of exceptions for
procedure in effect states that only was still subsisting.
obtaining valid
marriage license their FIRST MARRIAGE IS
acceptable proof of nullity of 1st marriage for NOT VOID BUT
marrage is void on
purposes of remarriage is judicial declaration ground of absence of a COMEPLETELY VALID
of nullity. formal requirement OR AT LEAST
[54]
:valid ML ANNNULLABLE. legally dissolved or before the absent
o If one of them SUBSISTING 1ST
remarries w/o
spouse has been declared presumptively
MARRIAGE WAS
procuring a JDN of 1st dead by means of judgment rendered I
VALID.
marriage, the the proper proceeding.
subsequent marriage
is void not because it The crime of bigamy therefore
is bigamous but contemplates a situation where the 1st
because it violates Art marriage is valid or at least annullable
40 in rel to 52 & 53
and not void from the beginning.
PRECISELY Hence if the 2nd marriage is likewise void
CONTEMPLATES A of legal grounds other than bigamy, there
SITUATION WHERE 1ST
can be no crime of bigamy.
MARRIAGE IS VOID
 Interesting to note however that in Nicdao It might likewise be pointed out that good
Carino v. Carino, SC wile acknowledging that faith in contracting 2nd marriage is a
previous marriage was void for aving been defense in crime of bigamy.
solemnized w/o marriage license, However, in (Mercado v Mercado) SC
nevertheless stated that subsequent held that criminal offense of bigamy is
marriage of one of the parties was bigamous committed for so long as subsequent
because the first marriage, though void was marriage was contracted by person
still presumed to be valid considering that without him/her obtaining judicial
there was no judicial declaration of nullity of declaration of nullity of his/her 1st
1st marriage. marriage pursuant to Art 40 of FC. SC
 Accordingly SC applied property regime did not find it material to focus on nullity
under Art 148. This particular decision of 1st marriage but instead merely
creates confusion for, in making the reasoned that, for so long as Art 40 of
presumption, there seems to be no more FC was not complied with, the
distinction between voidness of subsequent subsequent marriage will always be
marriage to bigamy under Art 41 criminally bigamous. Hence ruling states
 By statement SC presuming the validity of 1st that criminal bigamy is determined not by
marriage, though it is indeed void due to lack fact that 1st marriage is really legally void
of ML, it obfuscates the difference between but by fact that no judicial declaration of
40 & 41. nullity of 1st marriage was obtained prior
 QUESTION IS: If 1st marriage will always be to subsequent marriage.
presumed to be valid, though it is clearly This decision is subject to strong
void, would there still be any difference dissenting opinion of Assoc Justice Jose
between Art 40 and bigamy under 40? Vitug.He stated that criminal law on
 It is submitted therefore that despite the bigamy contemplated an existing
decision of SC in Carino case, basic marriage or at least an annullable or
difference between Art 40 ad 41 must still be voidable one but not a null and void one.
maintained. When criminal law on bigamy referred to
a legally dissolved marriage, it clearly
ARTICLE 40 AND CRIMINAL BIGAMY contemplates a marriage which is at
Crime of Bigamy under our laws is least annullable or voidable but not void.
committed by any person who shall This is so because criminal law on
contract a 2nd or subsequent marriage bigamy as explained in (People v.
before the former marriage has been Aragon) does not require a judicial
[55]
declaration of nullity in order to set up the
defense of nullity of marriage in cases of
criminal bigamy. He stated that the total
nullity and inexistence of void marriage
“should be capable of being
independently raised by way of defense
in a criminal case for bigamy”
He observes that “no incongruence
between this rule in criminal law and FC
and each may be applied within the
respective spheres of governance.”
Dissenting opinion of Assoc Justice Vitug
in Mercado case appears to be a correct
rule.
While the accused may have violated Art
40, such violation is not a bar in invoking
nullity of 1st marriage because Art 40
merely aims to put certainty as to the
void status of subsequent marriage and
is not aimed as provision to define
bigamy under FC or criminal bigamy
under RPC.
Only effect of non-observance of Art 40
is to make the subsequent marriage void
pursuant to Art 52 and 3.
(page 284*** People v. Cobar)
[ART 40-46 REFER TO BOOK AND TAKE

NOTE OF CASES}
[56]
(4) For causes mentioned in
number 4 of Article 45, by the
injured party, within five years
from the time the force,
intimidation or undue influence
Art. 47. The action for annulment disappeared or ceased;
of marriage must be filed by the
following persons and within the (5) For causes mentioned in
periods indicated herein: number 5 and 6 of Article 45, by
the injured party, within five
(1) For causes mentioned in years after the marriage.
NATURE OF ANNULMENT
number 1 of Article 45 by the
 Actions in rem: concern the status of parties and
party whose parent or guardian status affects or binds whole world.
did not give his or her consent,  “res” is the relation between said parties, or their
within five years after marriage tie.
 Jurisdiction over the same by proper RTC
attaining the age of twenty-one,
depends upon the nationality or domicile of
or by the parent or guardian or parties, not the place where celebration of
person having legal charge of marriage took place or the locus celebracionis.
the minor, at any time before  Thus where Filipino is domiciled in PH, lower
such party has reached the age court has jurisdiction to annul his marriage to
Korean girl contracted by him in Korea.
of twenty-one;
(Raray v. Chae Kyung Lee)
Rayray married Lee in 1952 in Pusan, Korea. Before
the marriage, Lee was able to secure a marriage
(2) For causes mentioned in license which is a requirement in Korea prior to
number 2 of Article 45, by the marrying. They lived together until 1955. Rayray
however later found out that Lee had previously
same spouse, who had no lived with 2 Americans and a Korean. Lee answered
knowledge of the other's by saying that it is not unusual in Korea for a woman
to have more than one partner and that it is legally
insanity; or by any relative or permissive for them to do so and that there is no
guardian or person having legal legal impediment to her marriage with Rayray.
Eventually they pursued their separate ways. Rayray
charge of the insane, at any later filed before lower court of Manila for an action to
time before the death of either annul his marriage with Lee because Lee’s
whereabouts cannot be determined and that his
party, or by the insane spouse consent in marrying Lee would have not been for the
marriage had he known prior that Lee had been
during a lucid interval or after living with other men. His action for annulment had
regaining sanity; been duly published and summons were made
known to Lee but due to her absence Rayray moved
to have Lee be declared in default. The lower court
(3) For causes mentioned in denied Rayray’s action stating that since the
marriage was celebrated in Korea the court cannot
number 3 of Article 45, by the take cognizance of the case and that the facts
injured party, within five years presented by Rayray is not sufficient to debunk his
marriage with Lee.
after the discovery of the
ISSUE: Whether or not Rayray’s marriage with Lee is
fraud;
null and void.
[57]
HELD: The lower court erred in ruling that Philippine sanity
courts do not have jurisdiction over the case. As far as 3. Fraud Injured party w/in 5 years
marriage status is concerned, the nationality principle
is controlling NOT lex loci celebracionis. The lower after discovery
court is however correct in ruling that Rayray’s of fraud
evidence is not sufficient to render his marriage with 4. Vitiated Injured party w/in 5 years
Lee null and void. Rayray said that the police Consent from time
clearance secured by Lee is meant to allow her to
force,
marry after her subsequent cohabitation/s with the
other men – which is considered bigamous in intimidation or
Philippine law. The SC ruled that the police clearance undue
is wanting for it lacks the signature of the person who influence
prepared it and there is no competent document to disappeared
establish the identity of the same. Also, through
or ceased
Rayray himself, Lee averred that it is ok in Korea for a
person who cohabited with other men before to marry 5. Incapabilit Injured party w/in 5 years
another man. This is an indication that Lee herself is y to after marriage
aware that if it were a previous marriage that is Consumma ceremony
concerned then that could be a legal impediment to te/ STD
any subsequent marriage. Rayray cannot be given
credence in claiming that his consent could have been
otherwise altered had he known all these facts prior to
Notes:
the marriage because he would lie to every  In case of insanity, if the sane spouse knew that
opportunity given him by the Court so as to suit his his/her spouse has already been insane previous
case. to the marriage
 Such sane spouse cannot file suit for annulment
as he/she is already estopped.
GROUNDS,PARTIES, PRESCRIPTIVE PERIOD  If sane spouse only knew of insanity after
 Prescriptive period is the time within which case marriage ceremony, he/she is given legal
can be filed in court. standing to file sit at anytime prior to death of
 After lapse of prescriptive period, case cannot be insane spouse.
filed anymore  In fraud, vitiated consent, incapability to
GROUNDS CODE (N.I.F.V.I) consummate and std :
GROUND PARTY TO FILE PRESCRIPTIV  Person given standing is the “injured party.
SUIT E PERIOD
 Even if injured party were married because of
1. No Parent Parent/Guardia Anytime
Consent n having legal before no- force and intimidation and thereafter such injured
charge of no- consent party party became insane, the parents or person who
consent party reaches age is legally charged of such aggrieved party who
of 21 eventually became insane cannot file a case for
No consent w/in 5 years annulment for him or her.
party after attaining  Non-consent of parents, as to child himself, she
21 can file the case within 5 years after reaching
2. Insanity Sane spouse At any time age of 21.
without before death - It may be argued, however that lowering the
knowledge of of either party majority age from 21 to 18 by R.A 6809
insanity amending Art 234 of FC, has in effect extended
Relative, At any time the prescriptive period in favor of child.
guardian, or before death  Where one of the parties is insane, he/she
person having of either party cannot reciprocate the marital commitment of
legal charge of sane person.
insane
 Insane spouse cannot even appreaciate and
Insane spouse During lucid
comply with the essential marital obligations.
interval or
after regaining  To a great extent, an insane person is even
worse than a person who is merely
[58]
psychologically incapacitated to perform the consideration to the moral and
essential marital obligations. Failure of insane material welfare of said children
person’s mental faculties to perform normally
even affects nor only his or her marital life but
and their choice of the parent with
also totality of life. whom they wish to remain as
 But if it that the case? Why is insanity merely a provided to in Title IX. It shall
ground for annulment while psychological also provide for appropriate
incapacity is grounds for nullity?
visitation rights of the other
 For vitiated consent, the 5 year period is counted
from the time of disappearance of force, parent.
intimidation or undue influence.
 For fraud, the 5 year period starts from discovery PROCEDURE IN ANNULMENT AND IN
of fraud DECLARATION OF NULLITY CASES
 For incurable impotency and std, disease, 5 year  Procedure is now governed by Supreme Court
period begins from time of marriage ceremony. En Banc Resolution A.M 00-11-01-SC. Effective
 However, except for grounds of incurable March 15,2003
physical incapacity to consummate or incurable  After a complaint for annulment or for declaration
STD, the ther grounds are subj to rule of of nullity of marriage has been filed with proper
ratification. RTC, defendant shall be given 15 days from
receipt of summons and of a copy of complaint
within which to file an answer
Art. 48. In all cases of annulment
 In the event that defendant fails to file an answer,
or declaration of absolute nullity he/she cannot be declared in default unlike
of marriage, the Court shall order ordinary civil cases and the court will order the
the prosecuting attorney or fiscal full-blown hearing of the case where the fiscal
shall appear on behalf of the state to make sure
assigned to it to appear on behalf
that no collusion or the evidence is not
of the State to take steps to fabricated.
prevent collusion between the  However, if errorneously, the court renders a
parties and to take care that default jusgment in an annulment case, this
evidence is not fabricated or would not prevent the decree from having legal
effect.
suppressed.  BECAUSE: Errorneous judgment IS NOT void
In the cases referred to in the judgment
preceding paragraph, no judgment  If defending party in an action for annulment or
shall be based upon a stipulation declaration of nullity of marriage or for legal
separation fails to answer, court shall order
of facts or confession of judgment.
prosecuting attorney to investigate whether a
collusion between parties exists, and if there is
Art. 49. During the pendency of the no such collusion, to intervene for the State in
action and in the absence of order to see to it that the evidence submitted is
not fabricated.
adequate provisions in a written
 Inquiry of the fiscal can focus upon any relevant
agreement between the spouses, the matter that may indicate whether proceedings
Court shall provide for the support for annulmen, nullity or legal separation are fully
of the spouses and the custody and justified or not.(Brown v. Yambao)
 Annulment suit cannot be terminated by way of
support of their common children.
compromise agreement.. No valid compromise is
The Court shall give paramount
[59]
legally possible on issue of validity of marriage. The task of fiscal is to determine if parties
(Mendoza v. Ca) colluded or fabricated their evidence to get a
 In all cases, a full blown hearing must be nullity or annulment of marriage. If there is no
undertaken where parties are duty bound to showing that compromise agreement for the
prove their grounds by preponderance of separation of propert touched on merits of nullity
evidence. or annulment case, participation of fiscal or OSG
 Summary proceedings are not allowed? in such an agreement is no need. (Maquilan v.
 WHY? Maquilan)
1. Such action is not one to “recover upon a  However if annulment or declaration of nullity of
claim” or “to obtain a declaratory relief” case were strongly opposed and heatedly
2. It is avowed politcy of state to prohibit contested in that defendant filed his answer and
annulment if marriages by summary was represented by counsel who filed several
proceedings (Roque v. Enarnacion) pleadings and actively participated in the case
 In actions for declaration of nullity or annulment and even cross examined the witnesses of
of marriage or legal separation, the material facts plaintiff, it is clear that litigation was characterized
alleged in complaint shall always be proved. by no-holds-barred contest and not by collusion.
Under this circustances, non-intervention of fiscal
or prosecuting atty. to assure lack of collusion
ROLE OF FISCAL AND SOLICITOR GENERAL between contending parties is not fatal for validity
 In annulment or nullitycases: prosecuting of proceedings in court especially when it was no
attorney or fiscal must be present. shown that it was suppressed or fabiracted by
 OSG can intervene in proceeding considering parties. These kinds of situation do not call for
that issue of validity of marriage is vested with strict application of Art 48 and 60 of FC (Tuason
public interest. v. CA)
 OSG – counsel of state in capacity of defender of COLLUSION
marital bound (defensor vinculi)  Where for purposes of getting an annulment or
nullity decree, parties come up w/ an agreement
DUTY making it appear that the marriage is defective
1.) Make sure that there is no collusion or due to the existence of any of the grounds for
that evidence is not fabricated annulment of marriage
2.) Defend marriage  or the declaration of its nullity provided by law
3.) Expose an invalid marriage and agreeing to represent such false or non-
existent cause of action before proper court with
 Prosecutin attorney must actively participate. objective of facilitating issuance of decree of
 Fiscal merely filed a manifestation that there was annulment or nullity of marriage.
no collusion and where he merely entered his  Collusion implies a corrupt agreement between
appearance at certain heariings of case for futher husband and wife and therefore renders
proceeding even if SC remanded case for further dismissible an annulment or nullity case initiated
proceedings even if judge of lower court already through the same.
denied petition for nullity. (Sin v. Sin)  Collusion only if parties had arranged to make it
 Partial voluntary separation of property agreed appear that ground existend or had been
upon by parties via compromise agreement duly committed although it was not, or if parties had
approved by Court prior to judicial declaration of connived to bring about a matrimonial case
nullity of marriage is valid (Maquilan v. Maquilan) even in absence of grounds therefor. (Ocampo
 It cannot be voided because non-participation of v. Florenciano)
prosecuting atty or OSG. An agreement to  To say that mere agreement is collusion and
separate property is not itself an indicator of therefore enough to dismiss a case is
collusion. In fact, there is no need for fiscal to dangerous becase this could very well leave
participate in negotiation leading to agreement. fate of proceeding to defendant who would, if
[60]
he/she wishes to proceed with case deny an Prohibition against annulling marriage based on
agreement, or who desires to terminate case stipulation of facts or by confession of judgment
merely invoke the parties agreed to file suit or by non-appearance of defendant stresses that
even if there is real ground for matrimonial case. marriage s more than mere contract between
 Judge who does not order an investigation for parties; and for this reason, when defendant fails
collusion when situation falls squarely within to appear, law enjoins court to direct prosecuting
rules for him to order such investigation can be officer to intervene for state in order to preserve
subject to administrative sanction. (Corpus v. integrity and sanctity of marriage bonds.
Ochotorena) ((Tolentino v. Villanueva)
 Mere fact that wife agreed and accepted Mere circumstance that defendant told fiscal that
P50,000 from husband as her share in conjugal she “liked also” to be legally separated from
property in nullity case does not prove collusion husband is no obstacle to successful prosecution
- Probability that husband willingly gave her of action.
amount as her conjugal asset out of his  Where 1st wife filed annulment of marriage case
recognition of her unquestionable legal with respect to subsequent marriage of her
entitlement to such share was very high husband with 2nd wife and where during hearing
STIPULATION OF FACTS OR CONFESSION there was a stipulation of facts entered into by
OF JUDGMENT 1st wife and defendants whereby parties agreed
 Annulment or decree cannot e issued by court on that 1st wife is married to her husband prior to
sole basis of stipulation of facts or confession of 2nd wife and where marriage certificates of 1st
judgment (Cardenas v. Cardenas and Rinen) and 2nd marriage were duly attached to
Stipulation of Facts Confession of stipulation of facts, sc ruled that the stipulation
Judgment of facts and attached marriage cert are sufficient
- Practically an - Admission made in to declare 2nd marriage null and void . In this
admission by both court by respondent case, collusion is remote becase interet of 1st
parties made in or defendant and 2nd wife are conflicting. (Cardenas v.
court agreeing to admitting fault as Cardenas)
existence of the act invoked by plaintiff to
constituting the sever marriage ties. NULLITY DECISION PRIOR TO
ground of DETERMINATION OF OTHER INCIDENTAL
annulment or for ISSUES
declaration of nullity  Annulmet and declaration of nullity case, other
of marriage
issues can be threshed out such as with respect
However if stipulation of facts or
to visitation rights division of property and
confession of judgment if sufficiently
custody.
supported or corroborated by other
 Rules of nullity of void marriage and annulment
independent substantial evidence to
support main ground relied upon, may of voidable marriages (En Banc Resolution in
warrant an annulment of marriage or the A.M 02-11-10-SC) clearly allow the reception on
declaration of nullity of the same. evidence on custody support and property
What law prohibits is judgment based relations after trial courts renders a decision
exclusively or mainly on defendant who granting petition or upon entry of judgment
oppose the separation will immediately granting the petition and even before decree of
confess judgment purposely to prevent it. nullity or annulment is issued (Yu. V. Carpio)
SUPPORT OF SPOUSES AND CUSTODY OF

Remember that state and public ave vital interest CHILDREN
in the mainteane and preservation of these social  Governed by whatever agreement the parties
institution against descreation by collusion have made with respect to the same.
between parties or by fabricated evidence.
[61]
 Principally, spouses and their children shall be (2) the time necessary to acquire sufficient education and
supported from properties of absolute community training to enable the spouse seeking support to find
appropriate employment, and that spouse’s future earning
of property or conjugal partnership of gains capacity;
during period of sut for annulment or nullity of (3) the duration of the marriage;
marriage. (Art 198 FC) (4) the comparative financial resources of the spouses,
 However should the court find agreement including their comparative earning abilities in the labor
market;
inadequate, it may disregard the same and make (5) the needs and obligations of each spouse;
necessary provisions. (6) the contribution of each spouse to the marriage,
 Where court provisionally gives support pendente including services rendered in home-making, child care,
lite to spouse who at end has of case has been education, and career building of the other spouse;
(7) the age and health of the spouses;
found out to be not entitled to support because (8) the physical and emotional conditions of the spouses;
marriage is void ab initio, court shall order (9) the ability of the supporting spouse to give support,
recipient to return to person who furnished taking into account that spouse’s earning capacity, earned
and unearned income, assets, and standard of living; and
support amounts already paid with legal interest
(10) any other factors the court may deem just and
from dates of actual payments. equitable. This however, should not be confused with a
 Court shall give paramount consideration to the separate action for support. An action for support pendente
moral and material welfare of children and their lite requires an existing case where the issue of support is
but an incident of the main proceeding. An action for
choice of parent with whom they wish to remain. support is an independent proceeding wherein the grant of
 Art 213 of FC provides that “no child under 7 support is the main relief sought.
years of age shall be separated from the mother
UNLESS court finds compelling reasons to order
otherwise.” VISITATION RIGHTS
 Court shall also provide for appropriate visitation  While custody of child may be awarded to a
rights of other parent. particular parent, this does not deprive other
Court takes consideration of parent from exercising his/her visitorial rights
 Sex
 UNLESS court for some compelling reason
 Age
 Emotional, Social,Moral, Material and Educational deprives him/her of this right.
needs  Even if parent has been legally deprived of
 Home environment offered by parties visitorial rights, this can be reinstated if fit can be
 Characteristics of those seeing custody including shown that grounds for deprivation have become
age, character,stability, mental and physical health
 Capacity and interest of each parent to provide for too harshe or are not anymore present.
child’s needs  Parents have natural right as well as moral and
 Effect on children of disrupting or continuing an legal duty to care for their children and see to
existing custodial status their proper upbringing and safeguard their best
 Preference of each child (if child is of sufficient age
and maturity)
interest and welfare.
 Recommendation of any expert witness  The authority and responsibility may not be
unduly renounced by them.
Rule 61 of the Rules of Court  Even when parents are estranged, and their
provides for the proper application and procedure for such affection to each other is lost, the attachment and
a petition. Under the said rule, the court hearing the case feeling for their offspring invariably remain
may, upon proper petition and hearing grant and unchanged.
provisionally fix the amount of money to be paid or to
provide for the other forms of support taking into CARLITOS E. SILVA, petitioner, vs. HON. COURT
consideration the resources of the adverse party. OF APPEALS and SUZANNE T. GONZALES,
Furthermore, as provided for under the Rule on Provisional respondents.
Orders covering actions for annulments, declaration of DECISION
nullity of marriages and actions for legal separation, the VITUG, J.:
court issuing the order for provisional support may be Parents have the natural right, as well as the moral
guided by the following factors: and legal duty, to care for their children, see to their
(1) whether the spouse seeking support is the custodian of proper upbringing and safeguard their best interest
a child whose circumstances make it appropriate for that
spouse not to seek outside employment;
and welfare. This authority and responsibility may not
[62]
be unduly denied the parents; neither may it be be the paramount consideration' - not the welfare of
renounced by them. Even when the parents are the parents (Art. 8, PD 603). Under the predicament
estranged and their affection for each other is lost, the and/or status of both petitioner-appellee and
attachment and feeling for their offsprings invariably respondent-appellant, We find it more wholesome
remain unchanged. Neither the law nor the courts morally and emotionally for the children if we put a
allow this affinity to suffer absent, of course, any real, stop to the rotation of custody of said children.
grave and imminent threat to the well-being of the Allowing these children to stay with their mother on
child. weekdays and then with their father and the latter's
live-in partner on weekends may not be conducive to
The petition bears upon this concern. a normal up-bringing of children of tender age. There
Carlitos E. Silva, a married businessman, and is no telling how this kind of set-up, no matter how
Suzanne T. Gonzales, an unmarried local actress, temporary and/or remote, would affect the moral and
cohabited without the benefit of marriage. The union emotional conditions of the minor children. Knowing
saw the birth of two children: Ramon Carlos and Rica that they are illegitimate is hard enough, but having to
Natalia. Not very long after, a rift in their relationship live with it, witnessing their father living with a woman
surfaced. It began, according to Silva, when Gonzales not their mother may have a more damaging effect
decided to resume her acting career over his vigorous upon them.
objections. The assertion was quickly refuted by
Gonzales who claimed that she, in fact, had never "Article 3 of PD 603, otherwise known as the Child
stopped working throughout their relationship. At any and Youth Welfare Code, provides in part:
rate, the two eventually parted ways.
"`Art. 3. Rights of the Child. - x x x
The instant controversy was spawned, in February
1986, by the refusal of Gonzales to allow Silva, in `(5) Every child has the right to be brought up in an
apparent contravention of a previous understanding, atmosphere of morality and rectitude for the
to have the children in his company on weekends. enrichment and the strengthening of his character.
Silva filed a petition for custodial rights over the
children before the Regional Trial Court (RTC), `(8) Every child has the right to protection against
Branch 78, of Quezon City. The petition was opposed exploitation, improper influences, hazards and other
by Gonzales who averred that Silva often engaged in conditions or circumstances prejudicial to his
"gambling and womanizing" which she feared could physical, mental, emotional, social and moral
affect the moral and social values of the children. development.
In an order, dated 07 April 1989, the trial court "With Articles 3 and 8 of PD 603, in mind, We find it to
adjudged: the best interest of the minor children, to deny
"WHEREFORE, premises considered, judgment is visitorial and/or temporary custodial rights to the
rendered directing respondent to allow herein father, even at the expense of hurting said parent.
petitioner visitorial rights to his children during After all, if indeed his love for the children is genuine
Saturdays and/or Sundays, but in no case should he and more divine than the love for himself, a little self-
take out the children without the written consent of the sacrifice and self-denial may bring more benefit to the
mother or respondent herein. No pronouncement as children. While petitioner-appellee, as father, may not
to costs."[1] intentionally prejudice the children by improper
influence, what the children may witness and hear
Silva appeared somehow satisfied with the judgment while in their father's house may not be in keeping
for only Gonzales interposed an appeal from the with the atmosphere of morality and rectitude where
RTCs order to the Court of Appeals. they should be brought up.
In the meantime, Gonzales got married to a Dutch "The children concerned are still in their early
national. The newlyweds emigrated to Holland with formative years of life. The molding of the character of
Ramon Carlos and Rica Natalia. the child starts at home. A home with only one parent
is more normal than two separate houses - (one
On 23 September 1993, the appellate tribunal ruled in house where one parent lives and another house
favor of Gonzales; it held: where the other parent with another woman/man
lives). After all, under Article 176 of the Family Code,
"In all questions, regarding the care, custody, illegitimate children are supposed to use the surname
education and property of the child, his welfare shall of and shall be under the parental authority of their
[63]
mother. Solicitor General, who has recommended due course
to the petition, that a few hours spent by petitioner
"The child is one of the most important assets of the with the children, however, could not all be that
nation. It is thus important we be careful in rearing the detrimental to the children. Similarly, what the trial
children especially so if they are illegitimates, as in court has observed is not entirely without merit; thus:
this case.
"The allegations of respondent against the character
"WHEREFORE, in view of all the foregoing, judgment of petitioner, even assuming as true, cannot be taken
is hereby rendered giving due course to the appeal. as sufficient basis to render petitioner an unfit father.
The Order of the Regional Trial Court of Quezon City The fears expressed by respondent to the effect that
dated April 7, 1989 is hereby reversed. Petitioner- petitioner shall be able to corrupt and degrade their
appellee's petition for visitorial rights is hereby denied. children once allowed to even temporarily associate
with petitioner is but the product of respondent's
"SO ORDERED."[2] unfounded imagination, for no man, bereft of all moral
persuasions and goodness, would ever take the
Silva comes to this Court for relief. trouble and expense in instituting a legal action for the
purpose of seeing his illegitimate children. It can just
The issue before us is not really a question of child be imagined the deep sorrows of a father who is
custody; instead, the case merely concerns the deprived of his children of tender ages."[6]
visitation right of a parent over his children which the
trial court has adjudged in favor of petitioner by The Court appreciates the apprehensions of private
holding that he shall have visitorial rights to his respondent and their well-meant concern for the
children during Saturdays and/or Sundays, but in no children; nevertheless, it seems unlikely that
case (could) he take out the children without the petitioner would have ulterior motives or undue
written consent of the mother x x x." The visitation designs more than a parents natural desire to be able
right referred to is the right of access of a to call on, even if it were only on brief visits, his own
noncustodial parent to his or her child or children.[3] children. The trial court, in any case, has seen it fit to
There is despite a dearth of specific legal provisions, understandably provide this precautionary measure,
enough recognition on the inherent and natural right i.e., "in no case (can petitioner) take out the children
of parents over their children. Article 150 of the without the written consent of the mother."
Family Code expresses that "(f)amily relations include WHEREFORE, the decision of the trial court is
those x x x (2) (b)etween parents and children; x x x." REINSTATED, reversing thereby the judgment of the
Article 209, in relation to Article 220, of the Code appellate court which is hereby SET ASIDE. No
states that it is the natural right and duty of parents costs.
and those exercising parental authority to, among SO ORDERED.
other things, keep children in their company and to
give them love and affection, advice and counsel,
companionship and understanding. The Constitution
itself speaks in terms of the "natural and primary
rights of parents in the rearing of the youth.[4] There
is nothing conclusive to indicate that these provisions Art. 50. The effects provided for
are meant to solely address themselves to legitimate
relationships. Indeed, although in varying degrees, by paragraphs (2), (3), (4) and (5)
the laws on support and successional rights, by way of Article 43 and by Article 44
of examples, clearly go beyond the legitimate
shall also apply in the proper
members of the family and so explicitly encompass
illegitimate relationships as well.[5] Then, too, and cases to marriages which are
most importantly, in the declaration of nullity of declared ab initio or annulled by
marriages, a situation that presupposes a void or
inexistent marriage, Article 49 of the Family Code final judgment under Articles 40
provides for appropriate visitation rights to parents and 45.
who are not given custody of their children.
The final judgment in such cases
There is no doubt that in all cases involving a child, shall provide for the liquidation,
his interest and welfare is always the paramount partition and distribution of the
consideration. The Court shares the view of the
properties of the spouses, the
[64]
custody and support of the common be considered as advances on their
children, and the delivery of third legitime.
presumptive legitimes, unless such
matters had been adjudicated in
previous judicial proceedings. JUDGMENT OF ANNULMENT OR NULLITY OF
MARRIAGE
All creditors of the spouses as - Shall state factual and legal basis for its
well as of the absolute community dispositive conclusion
or the conjugal partnership shall - Court cannot grant any relief which is not based
on allegation of the petition unless issues related
be notified of the proceedings for
t main case were presented without objection
liquidation. from any party.
In the partition, the conjugal - Should court render judgment not in conformity
dwelling and the lot on which it is with allegations in a pleading or which grant relief
situated, shall be adjudicated in which is not based on pleadings, judgment is
void for being coram non judice.
accordance with the provisions of
- Even if judgment is void but was not assailed in a
Articles 102 and 129. motion for reconsideration and therefore not
made an issue on appeal, such void judgment
shall not set aside and will continue to be
effective.
Art. 51. In said partition, the
- Findings of TC as to existence or non-existence
value of the presumptive legitimes of party’s psychological incapacity at time of
of all common children, computed as marriage is final and binding on SC unless it can
of the date of the final judgment be sufficiently shown that TC’s factual findings
and evaluation of testimonies and pieces of
of the trial court, shall be
evidence are clearly and manifestly erroneous.
delivered in cash, property or (Tuason v CA)
sound securities, unless the - If it shall involve dissolution of ownership of
parties, by mutual agreement properties, liquidation, partition and distribution of
judicially approved, had already the same shall be provided for in the same
judgment unless such matters had been
provided for such matters. adjudicated previous judicial proceedings or
The children or their guardian or parties had agreed in their marriage settlement
the trustee of their property may executed prior to marriage that regime of
ask for the enforcement of the separation of property govern their marriage.
ART 50 APPLIES TO marriage declared void ab inito
judgment. under 40 and 45 of fc
The delivery of the presumptive  VOID MARRIAGES THAT OCCUR AS A
legitimes herein prescribed shall RESULT OF NON-OBSERVANCE OF ARY 40
 Specifiically, they apply only to subsequent void
in no way prejudice the ultimate marriages contracted by spouse of a prior void
successional rights of the children marriage before latter s judicially declared void.
Art. 40. The absolute nullity of a previous marriage
accruing upon the death of either may be invoked for purposes of remarriage on the
of both of the parents; but the basis solely of a final judgment declaring such
previous marriage void
value of the properties already
Art. 45. A marriage may be annulled for any of the
received under the decree of following causes, existing at the time of the marriage
annulment or absolute nullity shall Art 43(2) The absolute community of property or the
[65]
conjugal partnership, as the case may be, shall be the rules on co-ownership.
dissolved and liquidated, but if either spouse Neither party can encumber or
contracted said marriage in bad faith, his or her share dispose by acts inter vivos of
of the net profits of the community property or his or her share in the property
acquired during cohabitation
conjugal partnership property shall be forfeited in
and owned in common, without
favor of the common children or, if there are none, the the consent of the other, until
children of the guilty spouse by a previous marriage after the termination of their
or in default of children, the innocent spouse; cohabitation.
(3) Donations by reason of marriage shall remain When only one of the parties to
valid, except that if the donee contracted the marriage a void marriage is in good faith,
in bad faith, such donations made to said donee are the share of the party in bad
revoked by operation of law; faith in the co-ownership shall
(4) The innocent spouse may revoke the designation be forfeited in favor of their
of the other spouse who acted in bad faith as common children. In case of
default of or waiver by any or
beneficiary in any insurance policy, even if such
all of the common children or
designation be stipulated as irrevocable; and their descendants, each vacant
(5) The spouse who contracted the subsequent share shall belong to the
marriage in bad faith shall be disqualified to inherit respective surviving
from the innocent spouse by testate and intestate descendants. In the absence of
succession. descendants, such share shall
Art. 44. If both spouses of the subsequent marriage belong to the innocent party. In
acted in bad faith, said marriage shall be void ab initio all cases, the forfeiture shall
and all donations by reason of marriage and take place upon termination of
the cohabitation
testamentary dispositions made by one in favor of the
other are revoked by operation of law. Art. 148. In cases of
cohabitation not falling under
VALDEZ RULING the preceding Article, only the
ART 50 OTHER CASES OF VOID properties acquired by both of
the parties through their actual
: MARRIAGE joint contribution of money,
VOID property, or industry shall be
CONTRACTED owned by them in common in
BEFORE LATTER proportion to their respective
IS JUDICIALLY contributions.
DECLARED VOID
- Although void, - Property regime shall  However in case of Carino v. Carino, SC ruled
property shall be be governed b rule on
liquidated as if co-ownership that subsequent marriage celebrated in violation
there is conjugal provided for by article of Art 40 is void because it is bigamous and
partnership of 147 and 148 therefore property regime in said subsequent
gains or absolute void marriage is co-ownership
community of  THIS CARINO RULING IS INACCURATE!
property  Legal rationale in Valdez ruling must still be
 TAKE NOTE: ART Chapter 7. Property Regime of
147 & 148 Unions Without Marriage followed considering that it is a clear application
summarized that’s of what Art 50 provides
not the whole Art. 147. Man and a woman  Supreme Court en banc resolution in A.M No. 02-
provisons who are capacitated to marry 11-10-SC of March 15,2003 provides in Sec 21
each other, live exclusively with
each other as husband and thereof
wife without the benefit of “After entry of judgment as a consequence of
marriage or under a void finality of a nullity or annulment decree,
marriage, their wages and
salaries shall be owned by presumptive legtme of common children shall be
them in equal shares and the delivered pursuant to Art 50 and 51 of FC”
property acquired by both of  Indeed new rules have acknowledged that for
them through their work or
purposes of void marriage, presumptive
industry shall be governed by
[66]
legitime shall be delivered in accordance with otherwise. In case there is no majority, court shall
Art 5 which in turn expressly provides that decide taking into consideration the best interest of
proper case of void marriage referred to is children
only one under Art 4 which is the subsequent
void marriage resulting from failure to get a  In case of other void marriages above provision
judicial declaration of nullity of 1st void is not applicable. Rules of co-ownership will
marriage apply. Dwelling shall be co-owned equally in the
REMEMBER AGAIN THIS TABLE!!!! absence of any evidence that it is the exclusive
property of one party in accordance with rules of
ART 40 ART 35 (4) & 41
co-ownership (HAYYZ ANG KULIT) (Valdez v.
o Void not because it o Subsequent void
is bigamous but bigamous marriage RTC)
because it failed to contemplates a  For marriages declared void on grounds other
comply with the situation where such than subsequent void marriage under Art 40,50
requirements under subsequent and 51 do not apply, and marriage can be
Art 40, 52 and 53. marriage was declared void without waiting for liquidation of
o Thus if contracting contracted at time
parties marry without a properties.
when the first
marriage license and marriage, which is  It is not necessary to liquidate properties of
they do not fall under valid in all respects, spouses in same proceeding for declaration of
exceptions for
was still subsisting. nullity of marriage. (Dino v Dino)
obtaining valid
marriage license their FIRST MARRIAGE IS  Rules on co-ownership under Civil Code applies
marrage is void on NOT VOID BUT under Art 496 thereof, partition may be made by
ground of absence of a COMEPLETELY VALID
agreement between parties or by judicial
formal requirement OR AT LEAST
:valid ML ANNNULLABLE. proceedings.
o If one of them SUBSISTING 1ST  In order that their interest will be amply protected,
remarries w/o MARRIAGE WAS all the creditors of spouses as well as of the
procuring a JDN of 1st VALID. absolute community or conjugal partnership shall
marriage, the
subsequent marriage be notified of liquidation proceeding.
is void not because it ENTRY OF JUDGMENT AND DECREE OF
is bigamous but NULLITY OF ANNULMENT
because it violates Art
- Unless here is Motion for Reconsideration or an
40 in rel to 52 & 53
appeal made after decision, such decision will
PRECISELY become final upon expiration of 15 days from
CONTEMPLATES A receipt of parties of the decision
SITUATION WHERE 1ST - Upon finality, entry of judgment shall be issued.
MARRIAGE IS VOID - Subsequently Decree of Absolute Nullity of
Marriage or Annulment of Marriage shall be
ART 50 and 51 also apply to VOIDABLE AND
issued.
ANNULABLE MARRIAGE under Art 45
Art. 45. A marriage may be annulled for any of the - Such decree is the best evidence of nullity or
following causes, existing at the time of the annulment of marriage.
marriage - However decree will issue only after registration
DOES NOT APPLY TO OTHER VOID MARRIAGES of the entry of judgment in proper local civil
 Like Art 36 on Psychological incapacity registries.
- In case of subsequent void marriage under Art
Art 102 (6) and 12 (9) identically provide that: 40, after registration of approved partition and
Unless otherwise agreed upon by the parties, in
distribution of properties of spouses in proper
partition of properties, conjugal dwelling and lot on
which it is situated shall be adjudicated to spoise with registry of deeds and delivery of presumptive
whom the majority of common children choose to legitime (Dino v Dino)
remain.
Children below age of 7 years are deemed to have PRESUMPTIVE LEGITIME
chosen the mother, unless court has decided
[67]
 Part of testator’s property which he cannot annulment or declaration of nullity.Assuming that he
dispose of because law has reserved it for has received presumptive legitime and transferee
“compulsory heirs” becomes incapacitated to receive, it is a matter of
 Decree of annulment or nullity of marriage shall recovery of the property that has been transmitted to
him or its value since legitime anyway is a matter of
also provide that presumptive legime of common
values not specific property.
children shall be delivered to the same in case,
property or sound securities unless parties, by J;PUNO:
mutual agreement judicially approved for such Presumptive leitime is exactly what it is, a
matter. presumption. It is not actual legitime. Actual legitime
 Shall be computed as of date of final judgment in is present at time of death. What then is the basis of
presumption? Basis of presumption is that properties
TC.
of persons involved at time of particular situation
 Judicial proceeding for approval of mutual arises would be the same as when he dies which is
agreement shall be summary in nature in not a fact. Point is, certain persons have to be
accordance with Art 253. protected.
 Law also provides that delivery of presumptive If you do not exclude the presumptive legitime, then
legitime will in no way prejudice the ultimate children of 1st marriage will be at a disadvantage
successional rights of children accruing upon because they will have to share that party which could
have belonged to them to one of he children in 2nd
death of either or both of parents but value of
marriage.
properties already received under decree of
annulment or absolute nullity shall be considered
THIS WILL HELP YOU TO REMEMBER
as advances of their legitime. ART 50
 While common children are not parties to the  Requires delivery of presumptive legitime
annulment case relative to voidable marriage ART 51
under 45 or nullity case based on Art 40,  How in the delivery of presumptive legitime shall
considering that they are materially affected by be valued
nullity or annulment judgment in so far as the ART 52
 Requires recording of delivery of presumptive
presumptive legitime is concerned, they are
legitime in proper registry of property
specially granted by law legal stading to seek
enforcement of judgment PETITION FOR CANCELLATION OF ENTRIES
 Delivery of presumptive legitime can be done - Petition for correction of entries under Rule 108
by filing a summary court proceeding praying of ROC filed by alleged wife for purposes of
for such delivery under Art 253 cancelling the certificate of marriage was the
ANNULMENT VOID MARRIAGES proper remedy not the Petition for Declaration of
Presumptive legitime of Delivery of Nullity of Marriage under FC considering that
common children must presumptive legitime is there was no actual marriage to speak of where
be delivered to them generally not required petitioner participated as bride.
except only in void
subsequent marriages Art. 52. The judgment of annulment
(Art 40)
or of absolute nullity of the
Hearing on FC in Senate Committee marriage, the partition and
of distribution of the properties of
Women and Family relations:
(Justice Reyes and Justice Puno) the spouses and the delivery of the
children's presumptive legitimes
[PURPOSE OF DELIVERY OF PRESUMPTIVE shall be recorded in the
LEGITIMES]
J; REYES: appropriate civil registry and
Protect legitime of children against result of registries of property; otherwise,
subsequent marriage that might be contracted after
[68]
the same shall not affect third by court
4.) Nullity (co-ownership)
persons.
RECORDING IN CIVIL REGISTRY AND

Art. 53. Either of the former REGISTRY OF PROPERTY
spouses may marry again after - Recording in civil registry and in registry of
property of judgment of annulment or of absolute
compliance with the requirements of
nullity of marriage and partition and distribution
the immediately preceding Article; as well as delivery of presumptive legitimes of
otherwise, the subsequent marriage common children in an annulled marriage based
shall be null and void. on Art 45 or nullified subsequent marriage based
on Art 40 are necessary to bind 3rd persons
- Necessary also for subsequent parties to
Art. 54. Children conceived or born
contract subsequent marriage.
before the judgment of annulment or - It must be noted however that except in
absolute nullity of the marriage subsequent void marriage that may arise due to
under Article 36 has become final non-observance of Art 40, there is no need for
delivery of presumptive legitime after marriage is
and executory shall be considered
judicially declared void.
legitimate. Children conceived or - Non-compliance with liquidation and partition
born of the subsequent marriage requirements as well as delivery of presumptive
under Article 53 shall likewise be legitime shall be a cause for non-issuance of
decree of nullity or annulment.
legitimate.
- Observance or non-observance of requirements
of liquidation, partition, distribution and the
LIQIDATION AND PARTITION OF delivery of presumptive legitimes is crucially
PROPERTIES material in determining whether subsequent
 In case of nullity of marriage, properties shall be
marriage is void only if previous marriage has
liquidated in accordance with ordinary rules of
co-ownership. been judicially nullified or annulled in
 Absolute community of property and conjugal accordance with law.
partnership of gains will not apply in a void - If 1st marriage were terminated by death of
marriage except I one exceptional case which is one of spouses and surviving spouse
subsequent void marriage under Art 40. remarried, complying with all essential and
 In voidable marriage, properties shall be formal requirements of Art 2 and 3 of FC,
liquidated in accordance with rules provided for subsequent marriage is valid even if there
under chapters in absolute community of has been no previous liquidation, partition
property and conjugal partnership of gains. and distribution of properties of 1st marriage
 If there is pre-nuptial agreement, there is no need as well as no delivery of presumptive
for liquidation and partition. legitimes or actual legitime of children (FUCK
 Partial voluntary separation of property agreed ITO YUNG RECIT)
upon by parties via a compromise duly approved - Failure to liquidate will only be determinative of
by court in judicial declaration of nullity of the property regime that will govern subsequent
marriage is valid. marriage.
SUMMARY LIQUIDATION/SEP OF PROP - Edi pag awuz magliquidate, automatically yung
[AP2N] next marriage, separation of property ang prop
1.) Absolute Community of Property/Conjugal regime.
property of gains APPROPRIATE CIVIL REGISTRY AND
2.) Pre-nuptial agreement REGISTRIES OF PROPERTY
3.) Partial voluntary separation of property approved
[69]
 LCR of City or Municipality where the court that considered legitimate. Children conceived or born of
issued the decision is functioning and also the the subsequent marriage under Article 53 shall
likewise be legitimate.
LCR of city or municipality where marriage was
solemnized. Art. 53.
 Upon finality of judgment, entry of judgment and Either of the former spouses may marry again
decree of nullity or annulment shall be issued after compliance with the requirements of the
which shall be registered in local civil registries immediately preceding Article; otherwise, the
where marriage was recorded and where Court subsequent marriage shall be null and void
granting the petition is located.
- Hence, if marriage is null and void because one
 Duty of successful petitioner to send the copy of
of the parties is psychologically incapacitated to
final decree of court to proper LCR.
perform essential marital obligations or because
 It shall be the duty of clerk of court which issued
parties to subsequent marriage have not
decree to ascertain whether same has been
complied with mandatory recording and
registered and if it has not been done, send a
distribution requirements under Art 52 in relation
copy of said decree to civil registry of city or
to Art 53, children conceived or born inside a void
municipality where court is functioning.
DRAW TABLE HERE OFHOW YOU UNDERSTOOD PROCESS marriage under Art 36 and before finality of
judgment of nullity in psychhologica incapacity
case, or conceived or born inside a vid marriage
under Art 36 and before finality of judgment in
psychological incapacity case, or those
conceived or born in marriage which does not
comply with Art 52 in relation to 53 shall be
considered legitimate.
- Judicial decree of nullity becomes final after
lapse of 15 days from the receivpt of parties of
said decree UNLESS in meantime, decree has
been appealed to higher court.
- It must be understood that children referred to
 Registries of property in Art 52 = Registries of under Art 54 referring to 36 do not involve those
properties where properties are located conceived and born after marriage ceremony of
 If yamanin, and there are many properties parents but before final judgment of nullity. Thus
located in various places, registration must be child conceived and born before marriage
made in each of registries of properties where ceremony is illegitimate.
each property is located. - If child were conceived at time when parents do
not suffer any legal impediment to marry each
other, subsequent marriage of such parents will
STATUS OF CHILDREN
Generally : legitimate child pursuant to Art 178 of FC.
- Children conceived and born outside of valid - If subsequent marriage is declared void because
marriage or inside void marriage are of Art 36, child shall be an illegitimate child.
illegitimate - Art 54 will not apply because child was born or
- Children conceived or born inside an conceived inside void marriage but was
annullable or voidable marriage are legitimate conceived when there was no marriage
while those conceived and born inside void ceremony yet.
marriage are illegitimate except as provided - Art 53, if either former spouse does not comply
for by Art 54 of FC with requirement under Art 52, and he/she
Art. 54. remarries, subsequent marriage is void but
Children conceived or born before the judgment of children conceived or born inside void marriage
annulment or absolute nullity of the marriage under are legitimate.
Article 36 has become final and executory shall be
[70]
TITLE II. ---- LEGAL SEPARATION
Art. 55. A petition for legal

separation may be filed on any of
the following grounds:
(1) Repeated physical violence or

grossly abusive conduct directed
against the petitioner, a common
child, or a child of the
petitioner;
(2) Physical violence or moral
pressure to compel the petitioner
to change religious or political
affiliation;
(3) Attempt of respondent to
corrupt or induce the petitioner, a
common child, or a child of the
petitioner, to engage in
prostitution, or connivance in such
corruption or inducement;
(4) Final judgment sentencing the
respondent to imprisonment of more
than six years, even if pardoned;
(5) Drug addiction or habitual
alcoholism of the respondent;
(6) Lesbianism or homosexuality of
the respondent;
[71]
(7) Contracting by the respondent - This is in furtherance of policy of state o foster
of a subsequent bigamous marriage, unity in and to preserve marital relation as the
same is essential to public welfare.
whether in the Philippines or AS A GENERAL RULE:
abroad; - They usually occur after celebration of marriage
(8) Sexual infidelity or
perversion; REPEATED PHYSICAL VIOLENCE OR GROSS
(9) Attempt by the respondent ABUSIVE CONDUCT
 Frequency of physical violence inflicted upon
against the life of the petitioner; petitioner, a common child or child of petitioner
or warrants a decree of legal separation.
(10) Abandonment of petitioner by  Law does not give a cause of action to petitioner
to file a case for legal separation on the ground
respondent without justifiable
that respondent spouse repeatedly inflicts upon
cause for more than one year. his/her own child with another person. (ay so
For purposes of this Article, the bawal ka mangiaalam kung wiz mo naman
term "child" shall include a child junakiz yung sinasaktan)
by nature or by adoption.  HOWEVER, such repeated physical violence
may be cause to suspend or terminate,
depending on severity of violence, the parental
LEGAL SPEARATION authority of respondent upon his/her own minor
- “Relative Divorce”
child with another person pursuant to Art 231 (1)
- Does not affect marital status , there being no
of FC.
severance of vinculum.
 Frequency of act and not severity of the same
- It does not dissolve marriage.
is determinative factor under this ground.
- Involves nothing more but a bed and board
(For example, sinapak ka ng extra super hard ni
separation of spouses.(a mesa et thoro) hubby yung kamay mo coz you are so malandi once <
- Decree is terminable at the will of the parties by Palagi kang sinasampal 15 times a day coz you are so
merely filing a manifestation in court, marriage mama-g)
continuing in regard to everything not necessarily  However it must be inflicted with bad faith and
withdrawn from its operation. malice
- FC does not admit absolute divorce except 2nd  Even if act is not repeated or does not involve
paragraph of Art 26. physical violence, such act may nevertheless
(Miller v Miller) constitute grossly abusve conduct on part of
DIVORCE ANNULMENT respondent which may warrant issuance of legal
- Dissltion of bond of - Proceeding is separation decree.
matrimony based on maintained upon  “Grossly abusive conduct” has no exact definition
theory of valid theory that, for some
marriage causes existing at and therefore determined on a case to case
- Casuses arising time or marriage basis
after marriage ceremony, marriage  Continued manifestation by one spouse of
is terminable indifference or aversion to the other coupled
with persistent neglect of duties incident to
EXCLUSIVITY OF GROUNDS FOR LEGAL marital relation has been declared by American
SEPARATION jurisprudence as cruelty enough to warrant
- No other grounds can be invoked by any party decree of divorce.
other than those stated by law.  If however, such indifference or neglect are
- May or may not exist at time of marriage manifestations of psychological incapacity to
ceremony perform essential marital obligations ------- same
may be ground for nullity under Art 36 (IF) such
[72]
behavior exists at tie of marriage ceremony and  Inducement likewise refers to prostitutiononly and
is grave and is incurable. not any other corrupt or immoral act.
 Also where it appears that spouse has EX: Spouse induces common child to engage
deliberately adopted, as course of conduct, into robbery to earn money for studies.
use of offensive language, with intent and  Mere attempt = ENOUGH to be ground for legal
fixed purpose of causing happiness = legal separation.
cruelty or abusive treatment.  Ground, however does not include subjects of
such an attempt, child of respondent or guilty
COMPULSION BY PHYSICAL VIOLENCE OR spouse with another person.
MORAL PRESSURE TO CHANGE RELIGIOUS OR [basta remember, hindi ground of legal sep pag
POLITICAL AFFILIATION di mo naman junakiz yung kiddo, it may just be a
J;PUNO ground for suspension or termination, depending
- Physical violence or grossly abusive conduct on severity, the parental authority of guilty
directed against petitioner and common child of spouse]
petitioner” [pag successful beshy, nako PERMANENT
- “physical violence” is for any purpose. So no TERMINATION OF PARENTAL AUTHORITY]
matter how insignificant the purpose is, as long
as there is repeated physical violence, there will
FINAL JUDGMENT INVOLVING MORE
be a ground for legal separation. THAN SIX YEARS OF IMPRISONMENT
- We equate it with religious conviction, so that - Offense could have been commtted against
with one attempt, one incident of physical anybody. (hindi necessary na crime was against
violence or moral pressure to compel the change spouse, common children, or petitioner’s
of religious affiliation or political affiliation, it can children)
be a ground of legal separation - Ground can be invoked even if convicted has
- We feel that there should be unity within family, been validly pardoned.
we think that the couple should learn to live with - KEYWORD “final judgment” kasi diba
each other’s political ideas. Main context is presumption innocent unless proven guilty
RECONCILIATION. beyond reasonable doubt.
- This is not divorce, that is not a cutting of marital DRUG ADDICTION, HABITUAL ALCOHOLISM,
ties, it is just a separation from bed and board but LESBIANISM AND HOMOSEXUALITY
they remain married. - Extent and nature of such as ground for legal
- There may still be reconciliation that would separation are the same as those in annulment
enable them to restore their family life. cases.
- HOWEVER in annulment cases, they are
CORRUPTION AND INDUCEMENT TO instances of fraud which must exist at time of
ENGAGE IN PROSTITUTION celebration of marriage.
 If one of spouses induces petitioner, a common - In legal separation, such grounds can exist even
child, or child of petitioner to engage in after marriage ceremony.
prostitution - It must be noted however that law should ot have
 Or if such spouse connives in such corruption lumped lesbianism and homosexuality with drug
and inducement addiction and habitual alcoholism as they are
 VALID LEGAL SEPARATION DECREE MAY different in nature
ISSUE TO PREVENT GUILTY SPOUSE FROM - Lesbianism and Homosexualism
EXERCISIG SUCH MORALLY DEPRAVED  NOT affliction
ACTS DETRIMENTAL TO GROWTH OF  Sexual orientation
CHILDREN AND FAMILY AS A WHOLE.  Do not by themselves affect mental state of
 Children here may or may not be emancipated. person/judgment
 The immoral and corrupt act referred to is - Drug addiction and habitual alcoholism deal with
prostitution only. mental state that is detrimental to one’s social
[73]
and personal being as well as to society as - MUST proceed from evil design and not from any
a whole. justifiable cause like self-defense or from fact that
spouse caught other in flagrante delicto having
carnal knowledge with another man and woman.
- No previous criminal conviction required for legal
BIGAMY
 Act of illegally contracting 2nd marriage desite full separation case to prosper
- Criminal attempt can be proven by
knowledge that the 1st marriage is still validly
existing or without obtaining needed judicial preponderance of evidence in civil case for legal
declaration of presumptive death of 1st spouse separation.
who is absent for 4 or 2 consecutive years
pursuant to Art 41. UNJUSTIFIED ABANDONMENT
 Whether illegal subsequent marriage has been  Abandonment or desertion must be WILLFUL.
solemnized in PH or abroad is immaterial..  Act is willful when there is design to forsake other
 HOWEVER if bigamous marriage were spouse intentionally or without cause and
committed abroad, guilty party cannot be therefore break the marital union.
criminally prosecuted for bigamy in PH as our  Deliberate intent to cease living with other
penal laws are territorial in nature spouse,
 Abnegation of all duties of marriage and relation
not to return.
SEXUAL INFIDELITY OR PERVERSION
 Abandonment must be without justifiable
- Husband and wife obliged to observe mutual
love, respect, and fidelity. cause.
 Physical separation alone is not the full meaning
 Conubinage & Adultery
 Acts committed which would constitute of term “abandonment” if, despite voluntary
departure from society of spouse, neither
a clear betrayal of trust f his/her
spouse b having intimate love affairs neglects management of conjugal partnership
with other persons. nor ceases to give support to his wife/husband.
 Even if husband’s single act of sexual  There must be absolute cessation of marital
intercourse with another woman may relations, duties and rights with intention of
perpetual separation.
warrant issuance of legal separation.
 Sexual perversion: w/other persons  Abandonment implies total renunciation of duties.
and even with spouse [oral sex, anal  Abandonment must be for more than 1 year.
sex, bestiality]
 (Pranther v. Pranther) CASES
Wife and her relatives saw husband on - Defendant never ceased to give support to wife
different occasions engaging in carnal and children negatives any intent on his part not
to return to conjugal abode and resume his
intercourse with cow, and when
marital duties and rights.
confronted about situation by wife,
husband merely evaded issue and - Where husband after leaving his wife,contined to
even resorted to vile language, make small contributions at intervals to her
necessitating wife to separate from suppor and that of their minor child, was not
guilty of “abandonment” (People v. Schelske)
husband, American court ruled that for
wife to continue living with spouse - Act of separation and continued intent to remain
separate must be wrongful in a sense that there
impair wife’s health and imperil her life,
is no reasonable excuse for one who separated.
divorce is justified.
(Willamson v. Willamson)
 but if one condones such
sexual infidelity and perversion - Separation in which both parties willingly concur
is not any sense in the world a willful desertion of
he is estopped = consent
one by the other (Smythe v. Smythe)
ATTEMPT ON LIFE
[74]
- It will not be granted however, as against spouse (6) Where the action is barred by
who became insane after initial act of desertion prescription.
or abandonment, but before the statutory period
had expired, general rule being that, in
computing such period, time during which Art. 57. An action for legal
offending spouse has been insane cannot be separation shall be filed within
said to have or maintain such nan intention. (4 five years from the time of the
ALR 1333)
occurrence of the cause
- Where husband used reasonable remonstrance
and has endeavored without avail to persuade
his wife not to leave him, should not be construed CONDONATION
to imply consent to separation. (Nunn v. Nunn) - Act of forgiving offense after its commission.
- Spouse is deemed to have abandoned other - Implies a condition of future good behavior of
when he/she left conjugal dwelling for period of 3 offending spouse, subsequent offense on his/her
months and has failed within same period to give part revokes or nullifies condonation and revives
any info as to his/her whereabouts shall be prima original offense. (Brown v. Brown)
facie presumed to have no intention of returning - KEYWORD: AFTER; FORGIVE
to conjugal dwelling. - Failure of husband to look actively for his
adulterous wife after she left conjugal home does
not constitute condonation or consent of wife’s
adulterous acts. It must be remembered that she
“left” him (Ocampo v Florenciano)
- Act of giving money to erring wife and fact that no
action was taken against her before courts of
justice ar sufficient to establish forgiveness
amounting to condonation.(Almacen v. Balazar)
Art. 56. The petition for legal - Condonation is the forgiveness of one of married
separation shall be denied on any parties of an offense which he knows the other
has committed against the other and at any rate,
of the following grounds:
pardon or condonation does not require sexual
(1) Where the aggrieved party has intercourse and may be express or implied
condoned the offense or act (Almacen v. Baltazar)
complained of; {So pag di nagsex, naforgive na? vice versa,
anyway just found it weird na nagging basis
(2) Where the aggrieved party has
sexual intercourse}
consented to the commission of the
offense or act complained of; CONSENT
(3) Where there is connivance - When either spouses agreed to or did no object
despite full knowledge, to act giving rise to ground of
between the parties in the legal separation, before such act was in fact
commission of the offense or act committed.
constituting the ground for legal - KEYWORD: BEFORE;MAGPAALAM
- Consent may be deduced from acts of spouses.
separation;
(4) Where both parties have given CONNIVANCE
ground for legal separation; - Connivance or procurement, denotes direction,
influence, personal exertion or other action with
(5) Where there is collusion
knowledge and belief that such action with
between the parties to obtain knowledge and belief that such action would
decree of legal separation; or
[75]
produce certain results are produced. (Cohen, knowledge and belief that procuring divorce
Divorce and Alimony in North Carolina) such action with knowledge
and belief that such action
- Basis of defense of connivance is the maxim would produce certain
“volenti non fit injuria” or that one is not legally results are produced
injured if he has consented to act complained of
or was willing that it should occur”
- KEYWORDS: WILLING THAT IT SHOULD PRESCRIPTION
OCCUR; - Must be filed within five years from the occurrence of
cause.
- After lapse of 5 year period, legal separation case
RECRIMINATION OR EQUAL GUILT
cannot be filed.
- “He who comes into equity must come with clean
- TIME OF DISCOVERY NOT MATERIAL
hands”
- 5 year limit : absolute prescriptive period so that
- They are in pari delicto irrespective of when it was discovered, it is in the
- Such plaintiff-spouse cannot invoke the guilt of occcuerence that will govern and therefore t will
the other if such plaintiff spouse is guilty of giving always be 5 years. Since law wants to preserve
grounds for legal separation. marriage rather than destroy it. Danger is that
- KEYWORDS: Yung nagsumbong may fault din discovery may come so many years later and
- Husband who subjects his wife to physical therefore it will make stability of marriage very
beathingss sought dismissal of case for legal precarious. Law assumes forgiveness(J; Puno)
separation filed against him by wife on ground of
equal guilt contending that wife abandoned him .
For abandonment to be a rgound for legal
separation, it must have been without justifiable
cause (Ong v Ong)
Ehhhhh kung hindi pa ba naman aalis yang wife
na yan at feel na feel pangbubugbog mo, edi
baka baliw na yan under Art 36 beshhy
COLLUSION
- Closely related to connivance
- Agreement between husband and wife for one of them
to commit or appear to commit or to be represented in
court as having commtted a matrimonial offense, or to
suppress evidence of valid defense for the purpose of Art. 58. An action for legal
enabling other to obtain divorce
separation shall in no case be
- Arranged to make it appear that matrimonial offense
has been committed although it has not or if parties tried before six months shall have
had connived to bring about legal separation even in elapsed since the filing of the
absence of grounds therefor.
petition.
- Collusion may not be inferred from mere fact that
guilty party confess to the offense and thus enabls the Art. 59. No legal separation may be
other party to procure evidence necessary to prove it. decreed unless the Court has taken
(Williams v. Williams)
steps toward the reconciliation of
- Proof that defendant desires the divorce and makes
no offense, is not by itself collusion. (Pohlman v the spouses and is fully satisfied,
Pohlman) despite such efforts, that
CONNIVANCE COLLUSION
reconciliation is highly
Corrupt consenting Corrupt Agreement improbable.
influence, personal exertion Agreement between
or other action with husband and wife looking to
[76]
Art. 60. No decree of legal - 6 onth cooling off period MAY BE DISPENSED
separation shall be based upon a WITH if ground of legal separation involves
violence against woman or the child.
stipulation of facts or a - Unless exempted by law, failure to observe 6
confession of judgment. month cooling off period is a ground to set aside
In any case, the Court shall order decision granting legal separation
the prosecuting attorney or fiscal - Any other incident such as determination of
custody of children, alimony and support pendent
assigned to it to take steps to
lite may be heard during 6 month. (6 m rule only
prevent collusion between the about validity or invalidity of grounds for legal
parties and to take care that the sep)
evidence is not fabricated or 6 months
- Period during which court is precluded from
suppressed. acting.
- In an ordinary proceeding, no such delay is
Art. 61. After the filing of the
permissible.
petition for legal separation, the - A suit for legal separation however is something
else. It involves a relationship on which law for
spouses shall be entitled to live the best reasons would attach the quality of
separately from each other. permanence.
- Grievances whether fancied or real may be
The court, in the absence of a entertained by one or both of the spouses.
written agreement between the - Nonetheless, it will not serve public interest much
less the welfare of husband or wife to allow them
spouses, shall designate either of to go their respective ways.
them or a third person to - Hope that parties may settle there differences is
not abandoned.
administer the absolute community - The “healing balm of time” may aid the process
or conjugal partnership property. - Hopefully guilty parties may mend his/her ways
and offended party may in turn exhibit
The administrator appointed by the magnanimity. (Saosa-Ramos v. Vameta Jr)
court shall have the same powers
FOR EASIER UNDERSTANDING
and duties as those of a guardian
 Plaintiff files complaint for legal separation
under the Rules of Court.  Defendant reqired to file an answer within 15
Art. 62. During the pendency of the days from receipt of summons and copy of
petition.
action for legal separation, the IF THIS THEN THIS
provisions of Article 49 shall Respondent fails to Prosecuting attorney
likewise apply to the support of answer investigates if collusion
exists
the spouses and the custody and Prosecuting attorney Prosecuting attorney
support of the common children. finds no collusion intervenes for state and
sees to it that evidence is
PROCEDURE not fabricated
- Governed by SC Resolution En Banc A.M No.
If party answers Fiscal mandated to be
00-11-01 SC
present in trial to make
- Plaintiff files complaint for legal separation. sure NO collusion and
- Defendant required to file an answer fabrication of evidence
- Whether defendant files an answer to complaint,
Legal separation Non-intervention of
no hearing on merits shall be set by court for 6 vehemently opposed and prosecuting attorney is
months heatedly contested not fatal to validity of
- 6 months : designed to give parties enough time (CLEAR that litigation proceedings in court
to further contemplate their position with the end was characterized by no- especially when it is was
view of attaining reconciliation between them holds barred contest and not shown that evidence
[77]
not by collusion was suppressed or because it rests on substantial distinctions. Backed by the
fabricated by ANY of the recorded intent of the framers of the law, as well as
parties. statistics from the Philippine National Police, the decision
recognized the historically unequal power relationship
between men and women, and that “women are the usual
You might ask, what does NO-HOLDS-BARRED mean? and most likely victims of violence.” It likewise declared that
 Idiom : “No limits/No restrictions” the enactment of R.A. 9262 “aims to address the
discrimination brought about by the biases and prejudices
DISCUSSION VAWC LAW (Garcia v. Drillon) against women,” and that the distinct classification being
It was enacted on March 8, 2004 and became effective on made between women and men is germane to the purpose
March 27 of the same year. Its full title is “The Anti- of the law. The Supreme Court affirmed that R.A. 9262,
Violence Against Women and their Children Act of 2004”. including the power to issue protection orders ex parte, or
R.A. 9262 is a special law that defines acts of violence without notice and hearing to the respondent, did not
against women and their children, or “VAWC”; penalizes violate the due process clause of the Constitution.
such acts; and provides protective measures and
remedies.
Go-Tan v. Spouses Tan, G.R. No. 168852
Covered by this law are women who are wives or former Subject Matter: Applicability of the doctrine of conspiracy
wives of the offender, those who have or have had a under the Revised Penal Code to R.A. 9262 (Anti-Violence
sexual or dating relationship with the offender, or those Against Women and Children Act of 2004)
who have a common child with the offender. Of course, as Facts:
the title of the law suggests, it also protects the children of On April 18, 1999, Sharica Mari Go-Tan and Steven Tan
these women, whether legitimate or illegitimate. were married. Out of this union, two female children were
born, Kyra Danielle and Kristen Denise. On January 12,
Other than the wife and ex-wife, this law also covers those 2005, barely six years into the marriage, petitioner Go-Tan
who, although not married, have had dating relationships. filed a petition with prayer for the issuance of a Temporary
This type of relationship is described in R.A. 9262 as the Protective Order (TPO) against Steven, in conspiracy with
protected woman and another person being “romantically respondents, were causing verbal, psychological, and
involved over time and on a continuing basis during the economic abuses upon her in violation of Section 5,
course of the relationship.” paragraphs (e) (2) (3) (4), (h) (5) and (i) of Republic Act No.
9262.
Violence is broadly defined to include physical, sexual,
psychological or economic kind. Physical violence is Issue:
covered, whether it is actual, attempted, threatened or Whether or not respondents-spouses, Perfecto and
even just placing the woman in fear of the same. Sexual Juanita, parents-in-law of Sharica, may be included in the
abuse is covered, and it includes acts from rape to making petition for the issuance of a protective order, in
demeaning and sexually suggestive remarks. accordance with RA 9262.
Psychological abuse could be any act or omission that
causes or likely to cause the mental or emotional suffering Held:
of the victim, while economic abuse refers to acts that
make or attempt to make a woman financially dependent. Yes, the Court ruled in favor of the petitioner. While the
All these are remedied and prevented by the issuance of provisions of RA 9262 provides that the offender be ralted
protection orders and may be issued by the court or the or connected to the victim by marriage, former marriage, or
Punong Barangay. a sexual or dating relationship, it does not preclude the
application of the principle of conspiracy under the RPC. In
Other than difficulties in implementation, the validity of R.A. Section 47 of RA 9262, it has expressly provides for the
9262 had been challenged. In a petition filed before the suppletory application of the RPC. Hence, legal principles
Supreme Court, the question of the constitutionality of developed from the Penal Code may be applied in a
R.A. 9262 was deliberated upon and resolved. The supplementary capacity to crimes punished under special
validity of said law was assailed on the grounds of being laws, such as RA 9262 in which the special law is silent on
discriminatory, unjust and violative of the equal a particular matter.
protection clause enshrined in the Constitution. Said
petition was denied by the Supreme Court a little less than
three months ago, on June 25, 2013. In short, the SUMMARY VAWC THINGS YOU HAVETO KNOW
Supreme Court upheld the constitutionality of R.A. 9262. IT INCLUDES BUT NOT LIMITED TO
1.) Physical violence
Penned by Associate Justice Estela M. Perlas Bernabe,
the Supreme Court promulgated a decision in the case of
2.) Sexual Violence
Garcia v. Drilon, docketed as G.R. No. 179267, 3.) Psychological violence
unanimously confirming the validity of R.A. 9262. In said 4.) Economic Abuse
decision, the Supreme Court ruled that that the law does
not violate the guarantee of equal protection of laws
[78]
 Considering the extent of coverage of VAWC offspring, support and disqualification from
law, it may be said that all grounds enumerated inheriting from the innocent spouse.
under Art 55 (legal separation) except Final  BASTA, magkaiba kasi sila ng cause of action so
judgment sentencing the respondent to gets?
imprisonment of more than six years, even if
pardoned, Drug addiction or habitual alcoholism
of the respondent and Lesbianism or JUDGMENT
homosexuality, could qualify as acts of violence  Judgment cannot be based on confession of
under VAWC. judgment or stipulation of facts.
ATTEMPTS AT RECONCILIATION  (Ocampo v Florenciano) explains the probative
 No legal separation may be declared UNLESS value of confession of judgment under Art 101 of
Court has taken steps toward the reconciliation of CC now Art 60 of FC relative to legal separation.
spouses and is fully satisfied, despite such efforts  Husband upon discovering illicit connection,
that reconciliation is highly improbable. expressed his wish to file an petition for legal
separation and defendant readily agreed to
 Unlike case of annulment or declaration of nullity such filing.
of a marriage where objective of plaintiff in suc  When she was questioned by the fiscal upon
cases is the complete severance of marriage orders of court, she reiterated her conformity
ties, a legal separation decree will not sever such with legal separations even as she admitted
having sexual relatins with Nelson Orzame.
material ties but will merely separate husband
 Appelate court declared that under Art 101
and wife from bed and board legal separation could not be declared.
QUANTUM OF EVIDENCE  Article does not exclude as evidence, any
- Proof by preponderance of evidence is required admission or confession made by defendant
to substantiate the ground for legal separation. outside of court. It merely prohibits decree of
separation upon confession of judgment
(Gandioco v. Penaranda)  Confession of judgment usually happens when
- In action for legal separation material facts defendant appears in court and confesses
alleged in complaint shall always be proved right of plaintiff to judgment or files pleading
HIERARCHY OF EVIDENCE expressly agreeing to plaintiff’s demand.
- PROOF BEYOND REASONABLE DOUBT  IN THIS CASE IT DID NOT OCCUR
- CLEAR AND CONVINCIN EVIDENCE  Yet even supposing that statement of
- PREPONDERANCE OF EVIDENCE defendant constituted confession of judgment,
- SUBSTANTIAL EVIDENCE inasmuch as there is evidence of adultery
independently of such statement, decree may
and should be granted, since it is not based on
her confession but upon evidence presented
NO PREJIDICIAL QUESTION AND NO by the plaintiff.
SUSPENSION OF CRIMINAL CASE  What law prohibits is a judgment based
exclusively or mainly on defendant’s
 In event that civil case for legal separation is filed confession
on ground of sexual infidelity because husband  Admission per se or confession per se is ok. Ang
committed concubinage and thereafter, criminal prinoprohibit ng court is a judgment based solely
case is filed for concubinage against husband, on that. Inchendes?!
 civil action for legal separation is based on
concubiange may proceed ahead or MANAGEMENT OF PROPERTIES DURING SUIT
simultaneously with a criimina action for  Court in absence of written agreement between
concubinage spouses shall designate either of them or third
 CIVIL ACTION is not one “to enforce liability from person to administer absolute community or
an offense” conjugal partnership property.
 CIVIL ACTION is one intended to obtain right to SAMSON T. SABALONES v. CA
live separately, with legal consequences thereof, G.R. No. 106169
such as dissolution of absolute community or
CRUZ, J.:
conjugal partnership of gains, custody of
The subject of this petition is the preliminary
[79]
injunction issued by the respondent court pending Pendente lite, the respondent wife filed a motion for
resolution of a case on appeal. We deal only with the issuance of a writ of preliminary injunction to
this matter and not the merits of the case. enjoin the petitioner from interfering with the
administration of their properties in Greenhills and
As a member of our diplomatic service assigned to Forbes Park. She alleged inter alia that he had
different countries during his successive tours of harassed the tenant of the Forbes Park property by
duties, petitioner Samson T. Sabalones left to his informing him that his lease would not be renewed.
wife, herein respondent Remedios Gaviola- She also complained that the petitioner had
Sabalones, the administration of some of their disposed of one of their valuable conjugal properties
conjugal properties for fifteen years. in the United States in favor of his paramour, to the
prejudice of his legitimate wife and children.
Sabalones retired as ambassador in 1985 and came
back to the Philippines but not to his wife and their The petitioner opposed this motion and filed his own
children. Four years later, he filed an action for motion to prevent his wife from entering into a new
judicial authorization to sell a building and lot contract of lease over the Forbes Park property with
located at #17 Eisenhower St., Greenhills, San Juan, its present tenant, or with future tenants, without
Metro Manila, belonging to the conjugal partnership. his consent.
He claimed that he was sixty-eight years old, very
sick and living alone without any income, and that he After hearing, the Court of Appeals, in an order
would use his share of the proceeds of the sale to dated April 7, 1992, granted the preliminary
defray the prohibitive cost of his hospitalization and injunction prayed for by the wife.[2]
medical treatment.
The petitioner now assails this order, arguing that
In her answer, the private respondent opposed the since the law provides for a joint administration of
authorization and filed a counterclaim for legal the conjugal properties by the husband and wife, no
separation. She alleged that the house in Greenhills injunctive relief can be issued against one or the
was being occupied by her and their six children and other because no right will be violated. In support of
that they were depending for their support on the this contention, he cites Art. 124 of the Family Code,
rentals from another conjugal property, a building reading as follows:
and lot in Forbes Park which was on lease to Art. 124. The administration and enjoyment of the
Nobumichi Izumi. She also informed the court that conjugal partnership property shall belong to both
despite her husband's retirement, he had not spouses jointly. In case of disagreement, the
returned to his legitimate family and was instead husband's decision shall prevail, subject to recourse
maintaining a separate residence in Don Antonio to the court by the wife for proper remedy, which
Heights, Fairview, Quezon City, with Thelma must be availed of within five years from the date of
Cumareng and their three children. the contract implementing such decision.
In her prayer, she asked the court to grant the In the event that one spouse is incapacitated or
decree of legal separation and order the liquidation otherwise unable to participate in the administration
of the conjugal properties, with forfeiture of her of the conjugal properties, the other spouse may
husband's share therein because of his adultery. She assume sole powers of the administration. These
also prayed that it enjoin the petitioner and his powers do not include disposition or encumbrance
agents from a) disturbing the occupants of the without authority of the court or the written consent
Forbes Park property and b) disposing of or of the other spouse. In the absence of such authority
encumbering any of the conjugal properties. or consent, the disposition or encumbrance shall be
void. However, the transaction shall be construed as
After trial, Judge Mariano M. Umali, found that the a continuing offer on the part of the consenting
petitioner had indeed contracted a bigamous spouse and the third person, and may be perfected
marriage on October 5, 1981, with Thelma as a binding contract upon the acceptance by the
Cumareng, to whom he had returned upon his other spouse or the authorization by the court
retirement in 1985 at a separate residence. The before the offer is withdrawn by either or both
court thus decreed the legal separation of the offerors.
spouses and the forfeiture of the petitioner's share He further notes that the respondent court failed to
in the conjugal properties, declaring as well that he appoint an administrator of the conjugal assets as
was not entitled to support from his respondent mandated by Art. 61 of the Code, thus:
wife.[1] Art. 61. After the filing of the petition for legal
separation, the spouses shall be entitled to live
This decision was appealed to the respondent court. separately from each other.
[80]
may issue to prevent future wrongs although no
The court, in the absence of a written agreement right has yet been violated."[4]
between the spouses, shall designate either of them
or a third person to administer the absolute The Court notes that the wife has been
community or conjugal partnership property. The administering the subject properties for almost
administrator appointed by the court shall have the nineteen years now, apparently without complaint
same powers and duties as those of a guardian on the part of the petitioner. He has not alleged,
under the Rules of Court. much less shown, that her administration has caused
The Court has carefully considered the issues and prejudice to the conjugal partnership. What he
the arguments of the parties and finds that the merely suggests is that the lease of the Forbes Park
petition has no merit. property could be renewed on better terms, or he
should at least be given his share of the rentals.
We agree with the respondent court that pending
the appointment of an administrator over the whole In her motion for the issuance of a preliminary
mass of conjugal assets, the respondent court was injunction, the respondent wife alleged that the
justified in allowing the wife to continue with her petitioner's harassment of their tenant at Forbes
administration. It was also correct, taking into Park would jeopardize the lease and deprive her and
account the evidence adduced at the hearing, in her children of the income therefrom on which they
enjoining the petitioner from interfering with his depend for their subsistence. She also testified the
wife's administration pending resolution of the numerous other conjugal properties, real and
appeal. personal, in the sole custody of the husband,[*]
including various dollar accounts, two houses in
The law does indeed grant to the spouses joint Quezon City and Cebu City, and a Mercedes Benz.
administration over the conjugal properties as The private respondent also complained that on
clearly provided in the above-cited Article 124 of the June 10, 1991, the petitioner executed a quitclaim
Family Code. However, Article 61, also above over their conjugal property in Apple Valley, San
quoted, states that after a petition for legal Bernardino, California, U.S.A., in favor of Thelma
separation has been filed, the trial court shall, in the Curameng, to improve his paramour's luxurious
absence of a written agreement between the couple, lifestyle to the prejudice of his legitimate family.
appoint either one of the spouses or a third person
to act as the administrator. These allegations, none of which was refuted by the
husband, show that the injunction is necessary to
While it is true that no formal designation of the protect the interests of the private respondent and
administrator has been made, such designation was her children and prevent the dissipation of the
implicit in the decision of the trial court denying the conjugal assets.
petitioner any share in the conjugal properties (and
thus also disqualifying him as administrator thereof). The twin requirements of a valid injunction are the
That designation was in effect approved by the Court existence of a right and its actual or threatened
of Appeals when it issued in favor of the respondent violation.[5] Regardless of the outcome of the
wife the preliminary injunction now under challenge. appeal, it cannot be denied that as the petitioner's
legitimate wife (and the complainant and injured
The primary purpose of the provisional remedy of spouse in the action for legal separation), the private
injunction is to preserve the status quo of the things respondent has a right to a share (if not the whole)
subject of the action or the relations between the of the conjugal estate. There is also, in our view,
parties and thus protect the rights of the plaintiff enough evidence to raise the apprehension that
respecting these matters during the pendency of the entrusting said estate to the petitioner may result in
suit. Otherwise, the defendant may, before final its improvident disposition to the detriment of his
judgment, do or continue doing the act which the wife and children. We agree that inasmuch as the
plaintiff asks the court to restrain and thus make trial court had earlier declared the forfeiture of the
ineffectual the final judgment that may be rendered petitioner's share in the conjugal properties, it would
afterwards in favor of the plaintiff.[3] be prudent not to allow him in the meantime to
participate in its management.
As observed by Francisco, "Injunction is primarily a
preventive remedy. Its province is to afford relief Let it be stressed that the injunction has not
against future acts which are against equity and permanently installed the respondent wife as the
good conscience and to keep and preserve the thing administrator of the whole mass of conjugal assets.
in the status quo, rather than to remedy what is past It has merely allowed her to continue administering
or to punish for wrongful acts already committed. It the properties in the meantime without interference
[81]
from the petitioner, pending the express designation
of the administrator in accordance with Article 61 of
the Family Code.
WHEREFORE, the petition is DENIED for lack of merit.

It is so ordered.
Art. 63. The decree of legal

DEATH TERMINATES LEGAL SEPARATION CASE separation shall have the following
Does death of plaintiff become final decree in action
effects:
for legal separation?
If it does, will abatement also apply if action involves (1) The spouses shall be entitled
property rights? to live separately from each other,
 Action for legal separation which involves nothing but the marriage bonds shall not be
more than bed-and-board separation of spouses
severed;
(there being no absolute divorce in this
jurisdiction) is purely personal. (2) The absolute community or the
 Being personal in character, it follows that death conjugal partnership shall be
of one party to action cayses death of action itself dissolved and liquidated but the
“actio personalis mortr cum persona”
offending spouse shall have no
 In absence of statute to the contrary, death of
one to such action abates action, for the reason right to any share of the net
that death has settled the question of separation profits earned by the absolute
beyond all controversy and deprived court of community or the conjugal
jurisdiction both over persons of parties to the partnership, which shall be
action and of the subject matter of action itself.
forfeited in accordance with the
 ( like beshie, higit pa nga to sa bed-and board
separation, coz life and death na to, malayong provisions of Article 43(2);
malayo na yung gusto mo layuan, hindi na legal (3) The custody of the minor
separation eh, separation by death, perpetually children shall be awarded to the
wala na yang asawa mo)
innocent spouse, subject to the
 Right to dissolution of conjugal partnership of
gains or absolute community of property, loss of provisions of Article 213 of this
right by offending spouse to share of profits Code; and
earned by partnership or community, or his (4) The offending spouse shall be
disqualification to inherit intestacy from innocent
disqualified from inheriting from
spouses as well as revocation of testamentary
provisions in favor of offending spouse made by the innocent spouse by intestate
innocent one, are all rights and disabilities that by succession. Moreover, provisions in
terms of CC are vested exclusively in person of favor of the offending spouse made
spouses and byyy their nature and itent such in the will of the innocent spouse
claim and disabilities are difficult to conceive as
assignable or transmissible. Hence claim of said
shall be revoked by operation of
rights is not thereby extinguished, there may be law.
substitute to party in such proceedings such as
the heirs of innocent spouse who died.
EFFECTS OF DECREE OF LEGAL
SEPARATION
- When decree itself is issued, finality of separation
is COMPLETE after lapse of period to appeal
[82]
decision to higher court even if the effects, such shall be separated from mother, unless court
as liquidation of property have not yet finds compelling reasons to order otherwise.
commenced nor terminated
- Law explicitly and clearly provides for the INTESTATE AND TESTATE DISQUALIFICATION
dissolution and liquidation of conjugal partnership - Offending spouse shall be disqualified from
as among the effects of final decree of legal inheriting from innocent spouse
separation. (Macadangdang v CA) - Moreover provisions in favor of offending spouse
- Legal effect of decree of legal separation is ipso made in will of innocent spouse shall be revoked
facto or automatically follows as an inevitable by operation off law
incident of judgment decreeing legal separation - Law does not provide that such revocation by
for purpose of determining share of each spouse operation of law will be rendered ineffectual in
in conjugal asset (Macadangdang v. CA) case legal separation decree is set aside by court
- Generally speaking purpose of decree of diviorce upon manifestation of parties that they have
insofar as disposition of property is concerned is reconciled.
to fix and make certain the property rights and - Under Art 921, CC which has not been repealed
interest of parties (Mich-Westgate v. Westgate) by FC, person can disinherit spouse in a will if
- Notwithstanding division of property between atter has given cause for legal separation even if
parties, subject matter of divorce remains the he/she has not been found guilty of commiting
marital status of parties, the settlement of such cause.
property rights is merely incidental (Wash-State) - However under Art 922 of CC, such
disinheritance in a will will be rendered ineffectual
MARRIAGE BOND MAINTAINED upon mutual reconciliation of spouses.
- Spouses shall be entitled to live separately from
each other but marriage bond shall be severed.
- Even if they live apart, spouse can still be Art. 64. After the finality of the
prosecuted for bigamy, concubinage and adultery decree of legal separation, the
because they are still married to each other
innocent spouse may revoke the
LIQUIDATION OF PROPERTY donations made by him or by her in
- ACP or CPG shall be liquidated. favor of the offending spouse, as
- However offending spouse shall have no right to well as the designation of the
any share of net profits earned by ACP or CPG
which shall be forfeited in favor of
latter as beneficiary in any
1.) Common children insurance policy, even if such
2.) (If no CC) Children of guilty spouse by designation be stipulated as
previous marriage irrevocable. The revocation of the
3.) In default, children of innocent spouse
donations shall be recorded in the
CUSTODY OF MINOR CHILDREN registries of property in the
- Innocent spouse shall be awarded custody of places where the properties are
minor chidren located. Alienations, liens and
- However in all matters relating to custody of
encumbrances registered in good
child, paramount interest shall be the standard.
- Hence court may even award custody of child to faith before the recording of the
3rd person complaint for revocation in the
- According to Art 213 of FC “court shall take into registries of property shall be
account,all relevant considerations, especially
respected. The revocation of or
choice of child over 7 years of age unless parent
chosen is unfit. No child under 7 years of age change in the designation of the
[83]
insurance beneficiary shall take by notification to insured, insurer who has no
knowledge of revocation might by its mistake r
effect upon written notification by its ignorance of revocation or by fraudulent
thereof to the insured. act of insured pay proceeds to former
beneficiary.
The action to revoke the donation  Correct procedure as deliberated should have
under this Article must be brought been notification to insurer and not insured.
 Be it as it may, since law states “notification tto
within five years from the time the insured” and not the insurer, law must be applied
as written up to such time the same is effectively
decree of legal separation become
amended.
final.
DONATIONS AND BENEFICIARY INSURANCE Art. 65. If the spouses should

- Donations and act of innocent party in reconcile, a corresponding joint
designating guilty spouse as beneficiary in an
manifestation under oath duly
insurance are essentially acts of liberality
signed by them shall be filed with
- law gives option to innocent party whether he/she
will revoke donation or designation of beneficiary. the court in the same proceeding
- Insofar as designation of guilty spouse in for legal separation.
insurance is concerned, even if such designation
is irrevocable, will be considered revoked upon
Art. 66. The reconciliation
written notification thereif to insured.
referred to in the preceding
- In case of donations, if innocent spouse decides
to revoke donation, he/she must file an action for Articles shall have the following
revocation within 5 years from time of decree of consequences:
legal separation has become final. (1) The legal separation
- However if donation is void, such as in violaton of
proceedings, if still pending,
Art 87 (every donation between spouses during
marriage except moderate gifts) right to bring an shall thereby be terminated at
action for nullity of such donation does not whatever stage; and
prescribe. (2) The final decree of legal
Deliberations of CC and FL committees
separation shall be set aside, but
 Revocation of donation shall be recorded in
place where properties are located. Alienations the separation of property and any
and mortgages made before notation of
complaint for revocation in Registries of Property forfeiture of the share of the
shall be valid. guilty spouse already effected
 From the deliberation of the code, revocation of
or change of designation of insurance shall subsist, unless the spouses
beneficiary shall take effect upon written agree to revive their former
notification thereof to insurer and not to the
insured as provided for by the law itself. property regime.
 There is a discrepancy therefore between final The court's order containing the
version of provision as deliberated and one
signed by Pres into law. Former states foregoing shall be recorded in the
notification to insurer and latter states notification proper civil registries.
to insued.
 Notification to insurer is indeed more practical
because it is the insurer who will be liable for
Art. 67. The agreement to revive
insurance.
 While there is nothing wrong in making the former property regime referred
revocation effective upon notification to insured,
it is very impractical and prejudicial to the
to in the preceding Article shall
insurer.
 It may happen that after revocation of insurance
[84]
be executed under oath and shall - HOWEVER with respect to separation of
specify: properties, which in meen time, had been made,
it shall subsist.
(1) The properties to be - However, parties can enter into agreement which
contributed anew to the restored should be approved by court, reviving their
regime; previous property regime.
(2) Those to be retained as - Agreement shall contain list of which properties
shall remain separate and which properties shall
separated properties of each
be contributed to revived property regime.
spouse; and - Creditors must be furnished the motion seeking
(3) The names of all their known approval of agreement.
creditors, their addresses and the - Recording of order in registries of property shall
not prejudice any creditor not listed or not notified
amounts owing to each.
UNLESS debtor-spouse has sufficient separate
The agreement of revival and the properties to satisfy creditor’s ciam.
motion for its approval shall be
filed with the court in the same REVIVAL AND ADOPTION
 Reconciling spouses can revive their original
proceeding for legal separation,
property regime.
with copies of both furnished to  New rules promulgated by SC for legal
the creditors named therein. After separation cases, Supreme Court En Banc
due hearing, the court shall, in Resolution A.M No. 02-11-12 effective on March
15,2003 allow in Sec 23 (e) and 24 thereof not
its order, take measure to protect
only revival in previous property regime but also
the interest of creditors and such provide a new rule allowing “adoption of another
order shall be recorded in the property regime of property relations different
proper registries of properties. from that which they had prior to filing of petition
The recording of the ordering in for legal separation.
 This is a new rule which is not contained in Art 66
the registries of property shall
and 67 of FC.
not prejudice any creditor not  QUESTIONS thus arise if new rules goes beyond
listed or not notified, unless the substantive law which clearly refer only to
debtor-spouse has sufficient REVIVAL of previous property regime.
The following diverging analyses may be considered:
separate properties to satisfy the
1. It is restrictive and therefore no other
creditor's claim property regime can be judicially applied for.
New rule allowing adoption is an undue
extension of substantive law and therefore
EFFECT OF RECONCILIATION
no legal basis. In cases of conflict,
- Should spouses decide to reconcile and indeed
substantive law or FC should prevail.
reconcile, they can file joint manifestation of 2. Although Art 66 (2) refers to revival only, it
reconciliation in court does not expressly provide that a different
- If legal separation case is still pending, it shall be property regime could not be applied for.
terminated. These provision should therefore be
- If decree has been issued already, whether with construed to allow what they did not
finality or not, it shall be set aside. disallow. However considering that marriage
bond is still intact and has never been cut,
- Order containing termination of case or setting this new rule cannot include allowing change
aside decree as case may be shall be recorded from ACP to CPG vice versa considering
in proper civil registries. that Art 33 and Art 107 provide that they
substantive rule. New rule can only be
change to different property regime other
[85]
than ACP or CPG.
3. Provided there is court approval, parties can
request for any other different regime.
INHERTANCE
 If innocent spouse had disinherited the guilty
spouse, subsequent reconciliation renders
ineffectual any disinheritance that may have
been made.
 However there is nothing in FC which provides
for revival of revoked provisions of will originally
made in favor of offending spouse.
 Innocent spouse has option of again reinstituting
provisions in a will, revoked by operation of law
by issuance of decree of legal separation.
 (power to decide) : innocent spouse.
RECORDING OF THE ORDER OF REVIVAL
- If order of revival has not at all been recorded to
proper civil registry, creditors will not be
prejudiced whether they are listed in the order or
they have been notified.
- It is the recording of order, the listing or non-
listing of creditors in said recorded order and the
notification of creditors which will have effect on
creditors claim as provided for by Art 67.
- Recording of order of revival in proper registry of
property shall prejudice those creditors listed in
order or those notified of motion of revival and of
the order
- However creditors who are not listed or who have
not been notified shall nevertheless be
prejudiced by recording of order if debtor spouse
has sufficient separate property to satisfy
creditor’s claim
- Court can set aside, certain separate properties
of each spouse for purposes of paying off or
protecting inters of each of spouses respective
creditors.
- If no properties were set aside for listed creditors
who are notified but who did not file their claims
to protect their interests, they shall be prejudiced
by recording of order in registry of property.
[86]
NO COMPULSION
- Except for support.

- Court cannot validly issue decision compelling
spouse to live together observe mutual love,
respect and fidelity. (ONLY MORAL
OBLIGATIONS + HIGHLY PERSONAL)
- Wife’s domestic assistance and conjugal
companionship are purely personal and voluntary
acts which either spouses may be compelled to
render (Arroyo v. Arroyo)
DAMAGES FOR FAILURE TO COMPLY WITH

OBLIGATIONS
 No action for damages because of breach of
marital obligations. (Ty. CA)
 Cases filed by husband for filing baseless
complaint causing her mental anguish, anxiety,
beshmirched reputation and social humiliation
TITLE III
and alienation from her parents. SC denied
RIGHTS AND OBLIGATIONS petition of husband but also denied claim of wife.
There are other remedies..
BETWEEN  OTHER REMEDIES:
HUSBAND AND WIFE HUMAN RELATIONS
ART 19 Every person must, in the exercise
of his rights and in the
performance of his duties, act with
Art. 68. The husband and wife are obliged to
justice, give everyone his due, and
live together, observe mutual love, respect observe honesty and good faith
ART 20 Every person who, contrary to law,
and fidelity, and render mutual help and wilfully or negligently causes
damage to another, shall
support indemnify the latter for the same
ART 21 Any person who wilfully causes
loss or injury to another in a
DUTIES AND OBLIGATIONS manner that is contrary to morals,
good customs or public policy
OBLIGATIONS EXPLANATIONS shall compensate the latter for the
 Husband and wife  Virtue in making it as damage
are obliged to live difficult as possible for
together, observe married couples --- Examples:
mutual respect and impelled by no better
cause than their whims
 Desertion and securing of an invalid divorce
infidelity and decree of one consort entitles other to revocer
and caprices to abandon
render mutual help each others company. damages and attorney’s fees. (Tenchavez vs.
and support  Necessity is a powerful Escano)
master in teaching the
duties which it imposes.
 Deprives spouse of the consortium or services of
other spouse can be helf liable for damages.
 Procreation is also  Universal principle that HOWEVER, must be fully proven.
an essential marital procreation of children is
obligation the basic end of marriage
LILIUS vs MANILA RAIL ROAD COMPANY
FACTS
[87]
Lilius was driving with his wife and daughter for personal and voluntary acts which neither of the
sightseeing in Pagsanjan Laguna. It was his first time spouses may be compelled to render, it is necessary
in the area and he was entirely unacquainted with the for the party claiming indemnity for the loss of such
conditions of the road and had no knowledge of the services to prove that the person obliged to render
existence of a railroad crossing. Before reaching the them had done so before he was injured and that he
crossing in question, there was nothing to indicate its would be willing to continue rendering them had he
existence and, it was impossible to see an not been prevented from so doing
approaching train. At about seven or eight meters
from the crossing the plaintiff saw an autotruck
parked on the left side of the road. Several people, CAN HUSBAND COMMIT RAPE AGAINST WIFE?
who seemed to have alighted from the said truck,  Yes
were walking on the opposite side. He slowed down
ART 266-A RC
and sounded his horn for the people to get out of the
way. With his attention thus occupied, he did not see  Committed by man who shall have carnal
the crossing but he heard two short whistles. knowledge of a woman through force, threat
Immediately afterwards, he saw a huge black mass or intimidation
fling itself upon him, which turned out to be  Offended party is deprived of reason or
locomotive No. 713 of the MRC’s train. The otherwise unconscious by means of
locomotive struck the plaintiff’s car right in the center.
The 3 victims were injured and were hospitalized. fraudulent machinations or grave abuse of
authority
ISSUE: WON the sums of money fixed by the court a  Woman is under twelve years of age or is
quo as indemnities for damages proper demented, even though none of
circumstances above are present
 Any person who shall commit sexual assault
Lilius also seeks to recover the sum of P2,500 for the by inserting penis into another’s mouth or
loss of what is called Anglo-Saxon common law anal orifice, or any instrument or object into
“consortium” of his wife, that is, “her services, society his genital or anal orifice of another person.
and conjugal companionship”, as a result of personal PH
injuries which she had received from the accident  However, legal husband (offender) subsequent
now under consideration. forgiveness by wife shall extinguish criminal
action or the penalty.
Under the law and the doctrine of this court, one of
the husband’s rights is to count on his wife’s  Provided that crime shall not be extinguished and
assistance. This assistance comprises the penalty shall not be abated if marriage is void ab
management of the home and the performance of initio
household duties. However, nowadays when women,  RAPE = Violence against women and children.
in their desire to be more useful to society and to the
nation, are demanding greater civil rights and are
aspiring to become man’s equal in all the activities of
life, marriage has ceased to create the presumption PRIOR TO PRESENT TIME
that a woman complies with the duties to her husband AMENDMENT OF RPC “matrimonial exemption
and children, which the law imposes upon her, and he “there can be no rape of has not been regarded
who seeks to collect indemnity for damages resulting wife” as universal and absolute
from deprivation of her domestic services must prove rule”
such services. In the case under consideration, apart 1.) Upon marriage  Essetially, rape
from the services of his wife as translator and woman no statutes have always
secretary, the value of which has not been proven, longer retained aimed to protect
Lilius has not presented any evidence showing the separate legal safety and personal
existence of domestic services and their nature, existence. liberty of woman.
rendered by her prior to the accident, in order that it 2.) Upon marriage  Implied consent
may serve as a basis in estimating their value. wife consents to rationale offensive to
sexual valued ideas of
Furthermore, inasmuch as a wife’s domestic intercourse with personal liberty, is
assistance and conjugal companionship are purely husband not sound where the
marriage itself is not
[88]
irrevocable. community property and, in the absence
thereof, from the income or fruits of their
Art. 69. The husband and wife shall fix the separate properties. In case of insufficiency
family domicile. In case of disagreement, the or absence of said income or fruits, such
court shall decide. obligations shall be satisfied from the
separate properties.
The court may exempt one spouse from
living with the other if the latter should live Art. 71. The management of the household
abroad or there are other valid and shall be the right and the duty of both
compelling reasons for the exemption. spouses. The expenses for such
However, such exemption shall not apply if management shall be paid in accordance
the same is not compatible with the with the provisions of Article 70.
solidarity of the family.
Art. 72. When one of the spouses neglects

DOMICILE his or her duties to the conjugal union or
- For exercise of viil rights and fulfillment of civil
obligations, domicile of natural persons is the commits acts which tend to bring danger,
place of their habitual residence (art 50 CC)
dishonor or injury to the other or to the
- Spouses can only have 1 domicile but many
residences family, the aggrieved party may apply to the
- Minor follows he domicile of his/her parents.
court for relief
HOWEVER
- New provision of FC recognizes revolutionary
changes in concept of women’s rights in EXPENSES FOR SUPPORT AND HOUSEHOLD
MANAGEMENT
intervening years by making the choice of
domicile a product of mutual agreement between - SUPPORT VERY IMPORTANT.
spouses (Romualdez Marcos v. COMELEC) Art 70 Spouses jointly liable to support fam
- However in case of disagreement between Art 68 Husband and wife obliged to support
husband and wife, court shall decide each other
- JUDICIAL PROCEEDING : Summary in nature in Art 94 and Absolute community of property and
Art 121 conjugal partnership of gains
accordance with Art 253 FC.
respectively shall be liable for support
- Spouses can validly live away or separately from of spouses, common children and
each other : compelling reason for exemption legitimate children of either spouse
- However such exemption shall not apply if same Art 49 In an annulment or nullity f marriage
is not compatible with solidarity of family. case, court shall provide for custdy and
support of children
Art 198 During proceedings for legal
Art. 70. The spouses are jointly responsible separation and for annulemenyy. And
for the support of the family. The expenses for declaration of nullity of marriage,
spouses and children shall be
for such support and other conjugal sipported from absolute community or
conjugal partnership.
obligations shall be paid from the Art 220 Parents and those exercising parental
[89]
authority shall have with respect to separate property of the spouse who has
unemancipated children or wards the
duty to support them. not obtained consent.
Art 70 and In absence of community property,
71 expenses for support and other The foregoing provisions shall not prejudice
conjugal obligations, shall be taken the rights of creditors who acted in good
from income or fruits of their separate
properties faith.
In case of insufficiency: Satisfied by
separate properties. Spouses shall be
solidarily liable for unpaid balance with LEGITIMATE PROFESSION
their separate properties. - Husband and Wife can engage in any lawful
Art 146 When regime of separate properties,
entrerprise or proefession.
liability of spouses to creditors for
family expenses shall however be - Law does not make it a requirement that spouse
solidary has to get prior consent of the other before
entering any legitimate profession, occupation,
business or activity.
MANAGEMENT AND RELIEF - If husband compels wife to desist from pursuing
- Management of household right and duty of both
profession or any other conduct, purpose or
spouses regardless of property regime.
effect of controlling or restricting her movemen or
- In event that one neglects duties or commits acts
conduct considered acts of violence aganst
which tend to bring danger, dishonor and injury to
woman under R. A 9262.
he other or the family, party may apply to court
- Exercise by spouse of legitimate profession,
for relief.
occupation or activity always considered to
 Filing of case of legal separation
redound to benefit of family.
 Nullifying marriage based on Art 36
- BUT isolated transaction of spouse is not per se
 Petitioning court for receivership,
considered as redounding to benefit of family and
judicial separation of property or
therefore to hold the absolute community or
authority to be sole administrator of
conjugal partnership property liable for any loss
community property /conjugal
resulting from isolated activity, PROOFS
partnership
SHOWING DIRECT BENEFIT OF FAMILY
MUST BE PRESENTED..
Art. 73. Either spouse may exercise any - It was only wife who entered into video contract
wth aggriveved parties, husband cannot be held
legitimate profession, occupation, business solidarily liable with wife for damages resulting
or activity without the consent of the other. from breach because under law any of spouses
may exercise any legitimate activity without
The latter may object only on valid, serious, consent of other souse. Also pursuant to sch
and moral grounds. principle that contract produce effect only as
between parties who execute them.However if
In case of disagreement, the court shall wife is really engaged in business of video filming
decide whether or not: it shall be considered as redounding to benefit of
fam and any loss shall be shouldered by absolute
(1) The objection is proper; and community of property or conjugal partnership of
gains. (Go vs CA)
(2) Benefit has occurred to the family prior
- In case of disagreement of spouses, objection
to the objection or thereafter. If the benefit must be anchored only on valid, serious and
moral grounds. Courts shall decide if objection is
accrued prior to the objection, the resulting
proper. Judicial proceedings summary in nature.
obligation shall be enforced against the
[90]
[91]

Civil Personality and Capacity

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Civil Personality and Capacity

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Aleezah Gertrude Regado

PERSONS AND FAMILY RELATIONS NOTES

CHAPTER 1: A married woman, twenty-one years of age or

QUIMIGUING v. ICAO Law considers conceived child as born for all

FAMILY CODE (ART 1-6) REFER TO

PLACE OF ISSUE Art. 11. Where a marriage license is

legally and validly contract marriage.

Art. 36. A marriage contracted by any party

Art. 37. Marriages between the following are

Bigamous and Polygamous marriages,  Spouse able to annul or to declare as null

Art. 28. If the residence of either party is so

Art. 29. In the cases provided for in the two

Art. 30. The original of the affidavit required in

Art. 31. A marriage in articulo mortis between

SUBSEQUENT VOID MARRIAGES DUE TO

COLLATERAL HALF BLOOD RELATIVES BY

[ART 40-46 REFER TO BOOK AND TAKE

SUPPORT OF SPOUSES AND CUSTODY OF

RECORDING IN CIVIL REGISTRY AND

TITLE II. ---- LEGAL SEPARATION

Art. 55. A petition for legal

(1) Repeated physical violence or

WHEREFORE, the petition is DENIED for lack of merit.

Art. 63. The decree of legal

DONATIONS AND BENEFICIARY INSURANCE Art. 65. If the spouses should

- Except for support.

DAMAGES FOR FAILURE TO COMPLY WITH

Art. 72. When one of the spouses neglects

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